     10-2986-cr
     United States v. Cade


                                UNITED STATES COURT OF APPEALS
                                    FOR THE SECOND CIRCUIT

                                           SUMMARY ORDER

     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
     SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY
     FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN
     CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE
     EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
     “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY
     PARTY NOT REPRESENTED BY COUNSEL.

 1           At a stated term of the United States Court of Appeals for the Second Circuit, held at the
 2   Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, on
 3   the 21st day of December, two thousand eleven.
 4
 5   PRESENT:           DEBRA ANN LIVINGSTON,
 6                      DENNY CHIN,
 7                      RAYMOND J. LOHIER, JR.,
 8                                      Circuit Judges.
 9
10
11   UNITED STATES OF AMERICA,
12             Appellee,
13
14            -v.-                                        No. 10-2986-cr
15
16   JESSE CADE,
17                      Defendant,
18
19   JOSEPH CADE,
20             Defendant-Appellant.
21
22
23                                   PAUL EVANGELISTA, Assistant Federal Public Defender (Molly
24                                   Corbett, on the brief), for Lisa Peebles, Acting Federal Defender,
25                                   Northern District of New York, Albany, New York, for Defendant-
26                                   Appellant.
27
28                                   PAUL D. SILVER, Assistant United States Attorney, for Richard S.
29                                   Hartunian, United States Attorney, Northern District of New York,
30                                   Albany, New York, for Appellee.
31
 1
 2          UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

 3   DECREED that the judgment of the district court be AFFIRMED.

 4          Defendant-Appellant Joseph Cade (“Cade”) appeals from a judgment of the United States

 5   District Court for the Northern District of New York (Sharpe, J.), entered July 8, 2010, convicting

 6   him, upon his guilty plea, of one count of knowingly attempting to persuade, induce, or entice a

 7   minor to engage in unlawful sexual conduct, in violation of 18 U.S.C. § 2422(b), and sentencing him

 8   to 188 months’ imprisonment and a life term of supervised release. On appeal, Cade challenges

 9   several aspects of the district court’s sentence, alleging both procedural error and substantive

10   unreasonableness. We assume the parties’ familiarity with the underlying facts, procedural history

11   of the case, and issues on appeal.

12          “We are constrained to review sentences for reasonableness, and we do so under a deferential

13   abuse-of-discretion standard.” United States v. Conca, 635 F.3d 55, 62 (2d Cir. 2011) (internal

14   quotation marks and citation omitted). This review encompasses “consideration of both the length

15   of the sentence (substantive reasonableness) and the procedures used to arrive at the sentence

16   (procedural reasonableness).” United States v. Canova, 485 F.3d 674, 679 (2d Cir. 2007). “While

17   factual determinations underlying a district court’s Guidelines calculations are reviewed for clear

18   error, a district court’s application of the Guidelines is reviewed de novo.” Conca, 635 F.3d at 62.

19          First, Cade contends that the district court erred in applying the “special instruction” of

20   U.S.S.G. § 2G1.3(d). That section provides that, for convictions under § 2422(b), “[i]f the offense

21   involved more than one minor,” the Guidelines provisions for calculating an offender’s total offense

22   level when there are multiple counts of conviction “shall be applied as if the persuasion, enticement,

23   coercion, travel or transportation to engage in . . . prohibited sexual conduct of each victim had been

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 1   contained in a separate count of conviction.” U.S.S.G. § 2G1.3(d)(1). Accordingly, where the

 2   offense involves more than one minor victim, “each minor . . . is to be treated as a separate minor,”

 3   and “[c]onsequently, multiple counts involving more than one minor are not to be grouped together

 4   under § 3D1.2.” U.S.S.G. § 2G1.3, Application Note 6.

 5          Here, the district court concluded that Cade’s offense involved two victims—a fictional four-

 6   year-old girl and a fictional thirteen-year-old girl. Contrary to Cade’s assertions, however, the

 7   district court did not err in this regard. The term “offense,” as used in the Guidelines, “means the

 8   offense of conviction and all relevant conduct under § 1B1.3 (Relevant Conduct) unless a different

 9   meaning is specified or is otherwise clear from the context.” U.S.S.G. § 1B1.1, Application Note

10   1(H) (emphasis added). Section 1B1.3(a)(1)(B) of the Guidelines, in turn, provides that such

11   “relevant conduct” includes “all reasonably foreseeable acts and omissions of others in furtherance

12   of the jointly undertaken criminal activity.” U.S.S.G. § 1B1.3(a)(1)(B). Jointly undertaken criminal

13   activity is defined as “a criminal plan, scheme, endeavor, or enterprise undertaken by the defendant

14   in concert with others, whether or not charged as a conspiracy.” U.S.S.G. § 1B1.3, Application Note

15   2. To sentence a defendant on the basis of a coconspirator’s criminal activity, the sentencing court

16   must make particularized findings both that the conduct was “in furtherance of the jointly

17   undertaken criminal activity” and that it was “reasonably foreseeable.” United States v. Studley, 47

18   F.3d 569, 574 (2d Cir. 1995).

19          At Cade’s sentencing, the district court concluded that the inducement of the fictional

20   four-year-old by Cade’s brother, Jesse Cade (“Jesse”), constituted relevant conduct for which Cade




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 1   was accountable.1 The court said that the relevant facts included “the full factual recitation

 2   regardless of which of the brothers” engaged in the specific conduct, and that it rejected the

 3   argument that “the conduct of one is irrelevant to the other.” Moreover, the court made the

 4   particularized finding that Cade “was cognizant of those conversations between Jessie [sic] and the

 5   purported 13-year-old as it related to the 4-year-old” because otherwise “his response to the

 6   undercover when the subject of the 4-year-old was brought up” made no sense. The court’s

 7   conclusions amount to a finding that the brothers jointly undertook their criminal activity, and that

 8   Jesse’s inducement of the four-year-old was reasonably foreseeable to Cade.

 9          These conclusions are supported by the record. Jesse asked the fictional thirteen-year-old

10   about her younger friends and suggested sexual acts with them, including the four-year-old, and

11   arranged to meet both girls. Cade knew of the four-year-old’s age and was involved in the plan to

12   meet the two girls at the park. Moreover, both brothers expressed intentions to engage in sexual acts

13   with both girls. On this record, the district court did not err in concluding that Jesse’s inducement

14   of the four-year-old was part of the brothers’ jointly undertaken criminal activity and was reasonably

15   foreseeable to Cade.

16          Although the district court also found that Cade’s own actions amounted to inducement of

17   the four-year-old, we decline to reach this question. Rather, we uphold the application of the

18   “special instruction” of § 2G1.3(d)(1) on the basis of Jesse’s unquestionable inducement of the

19   four-year-old, which was in furtherance of the jointly undertaken criminal activity and was

20   reasonably foreseeable by Cade.


            1
              There is no question that one can entice a minor to engage in unlawful sexual activity
     within the meaning of § 2422(b) through a third-party intermediary. See United States v.
     Douglas, 626 F.3d 161, 164–65 (2d Cir. 2010).

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 1          Next, Cade contends that the district court committed procedural error, in the form of

 2   impermissible “double counting,” in applying the computer-use enhancement, see U.S.S.G.

 3   § 2G1.3(b)(3), as to both of the two minor victims in the course of following the “special

 4   instruction” of § 2G1.3(d)(1). Since Cade did not object on this basis in the district court, we will

 5   review this argument only for plain error. See United States v. Folkes, 622 F.3d 152, 156 (2d Cir.

 6   2010). In order for a defendant to succeed on plain error review, he must demonstrate “(1) error (2)

 7   that is plain and (3) affects substantial rights.” Id. Moreover, once we have noticed plain error, it

 8   remains “within our discretion to decide whether to correct it, and we will do so only if it ‘seriously

 9   affect[s] the fairness, integrity or public reputation of judicial proceedings.’” Id. (quoting United

10   States v. Doe, 297 F.3d 76, 82 (2d Cir. 2002)) (alteration in original). Cade has failed to

11   demonstrate any error as to the court’s application of the computer-use enhancement, however,

12   either plain or otherwise.

13          “Impermissible ‘double counting’ is the judicial augmentation of a defendant’s sentence in

14   contravention of the applicable statute or Sentencing Guideline.” United States v. Torres-

15   Echavarria, 129 F.3d 692, 699 (2d Cir. 1997) (emphasis in original). So long as “the court does not

16   augment a sentence in contravention of the applicable statute or Sentencing Guideline,” however,

17   “no forbidden double counting occurs.” United States v. Meskini, 319 F.3d 88, 91 (2d Cir. 2003)

18   (internal quotation marks omitted). Moreover, “we have consistently held that double counting is

19   permissible in calculating a Guideline sentence where . . . each of the multiple Guidelines sections

20   applicable to a single act serves a distinct purpose or represents a discrete harm.” United States v.

21   Maloney, 406 F.3d 149, 153 (2d Cir. 2005).

22          Here, the district court’s application of the computer-use enhancement did not constitute


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 1   impermissible double counting. Rather, the court calculated Cade’s offense level in perfect

 2   compliance with § 2G1.3(d)(1) of the Guidelines, which mandates that where the defendant is

 3   convicted pursuant to § 2422(b) and the offense involves more than one minor victim, the

 4   defendant’s total offense level is to be calculated as if “each victim had been contained in a separate

 5   count of conviction.”     U.S.S.G. § 2G1.3(d)(1).       Moreover, the court’s application of this

 6   enhancement as to each victim “represent[ed] a discrete harm,” i.e., that to each of the minor

 7   victims. Maloney, 406 F.3d at 153. Accordingly, Cade has failed to demonstrate error—let alone

 8   plain error—in the district court’s application of the computer-use enhancement as to both victims.

 9          Finally, Cade contends that his 188-month term of imprisonment is substantively

10   unreasonable. Again, we review sentences for reasonableness, a standard akin to abuse of

11   discretion. Conca, 635 F.3d at 62. We have emphasized that “[a] sentencing judge has very wide

12   latitude to decide the proper degree of punishment for an individual offender and a particular crime.”

13   United States v. Cavera, 550 F.3d 180, 188 (2d Cir. 2008) (en banc). Thus, “[t]he fact that [an]

14   appellate court might reasonably have concluded that a different sentence was appropriate is

15   insufficient to justify reversal of the district court.” Gall v. United States, 552 U.S. 38, 51 (2007).

16   Rather, we consider only “whether the sentence imposed falls within the broad range that can be

17   considered reasonable under the totality of the circumstances.” United States v. Jones, 531 F.3d

18   163, 174 (2d Cir. 2008). This review is intended only to provide a backstop against sentences that

19   are “shockingly high, shockingly low, or otherwise unsupportable as a matter of law.” United States

20   v. Rigas, 583 F.3d 108, 123 (2d Cir. 2009). Accordingly, if the resulting sentence is reasonable, “we

21   will not second guess the weight (or lack thereof) that the [sentencing] judge accorded to a given

22   factor or to a specific argument made pursuant to that factor.” United States v. Fernandez, 443 F.3d

23   19, 34 (2d Cir. 2006).

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 1          Cade contends that the district court “dismissed the compelling information submitted under

 2   [18 U.S.C. §] 3553(a) by [defendant] and relied instead on information which was of questionable

 3   reliability and arguably irrelevant.” Appellant’s Br. at 48. But this amounts to no more than

 4   quibbling with the district court’s weighing of the § 3553(a) factors. The record amply reflects that,

 5   at sentencing, the district court carefully considered the record, the parties’ arguments, and the

 6   § 3553(a) factors. The court specifically addressed and acknowledged, inter alia, Cade’s rough

 7   upbringing and his “border line intellect,” but concluded that these mitigating factors were overcome

 8   by the severity of Cade’s conduct in this case, Cade’s admitted history of engaging in illegal sexual

 9   activity with underage individuals, and his inability to “control his sexual urges.” In explaining its

10   chosen sentence, the court stated that it felt “sorry” for Cade, stating, “I’m not sure y[ou] had the

11   greatest chance in life,” and, “I’m not sure that God equipped you to have the greatest chance at life,

12   in addition to the environment in which you were raised.” It concluded, however, that Cade was a

13   “predator” and that “sympathy does not outweigh my need to protect the public from you.” It

14   nonetheless chose to sentence Cade at the very bottom of the Guidelines range. Nothing in the

15   record demonstrates that the court failed adequately to balance the § 3553(a) factors, or that its

16   sentence was “shockingly high, shockingly low, or otherwise unsupportable as a matter of law,”

17   Rigas, 583 F.3d at 123, and there is no basis for upsetting the court’s careful and conscientious

18   sentencing determination.

19          We have considered all of Defendant-Appellant’s remaining arguments and find them to be

20   without merit. For the foregoing reasons, the judgment of the district court is hereby AFFIRMED.

21                                                         FOR THE COURT:
22                                                         Catherine O’Hagan Wolfe, Clerk
23
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