                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-20-2007

USA v. Olfano
Precedential or Non-Precedential: Precedential

Docket No. 06-2988




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                                             PRECEDENTIAL


          UNITED STATES COURT OF APPEALS
               FOR THE THIRD CIRCUIT




                         No. 06-2988




              UNITED STATES OF AMERICA

                                v.

                       JOHN OLFANO,
                                Appellant


        On Appeal from the United States District Court
            for the Middle District of Pennsylvania
                 (D.C. Crim. No. 04-cr-00255)
            District Judge: Hon. James M. Munley


          Submitted Under Third Circuit LAR 34.1(a)
                     September 17, 2007

    Before: SLOVITER, SMITH and WEIS, Circuit Judges

                 (Filed: September 20, 2007 )




James V. Wade
       Federal Public Defender
Ronald A. Krauss
       Assistant Federal Public Defender - Appeals
Harrisburg, PA 17101

      Attorneys for Appellant
Thomas A. Marino
       United States Attorney
Francis P. Sempa
       Assistant United States Attorney
Scranton, PA 18501

       Attorneys for Appellee


                           OPINION


SLOVITER, Circuit Judge.

                                I.

        Appellant John Olfano pled guilty to an information
charging him with receiving child pornography in violation of 18
U.S.C. § 2252(a)(2). Olfano admitted to collecting child
pornography and to receiving and storing between 300 and 400
images on his computer. The FBI found between 300 and 600
images of child pornography on Olfano’s seized computer. In
the plea agreement and during the plea colloquy Olfano waived
his right to have a jury determine any facts related to sentence
enhancements, instead agreeing to allow the judge to find such
facts by a preponderance of the evidence.

       The Presentence Investigation Report (“PSR”), which
used the 2002 edition of the United States Sentencing
Guidelines, set Olfano’s total offense level at 36 and criminal
history category at I, for a sentencing range of 188-235 months.
The total offense level included many enhancements agreed to
by both parties. Olfano objected to the five-level enhancement
for “a pattern of activity involving the sexual abuse or
exploitation of a minor,” pursuant to section 2G2.2(b)(4) of the
Guidelines. This Guideline has since been redesignated as
section 2G2.2(b)(5).

       The enhancement stems from Olfano’s two juvenile
adjudications for indecent assault; the adjudications involved

                                2
Olfano’s improper sexual contact with a female juvenile in 1986,
and with his nine-year-old half-sister in 1989. Olfano does not
contest that he was adjudicated delinquent in those cases, but
instead argues that they did not constitute a “pattern” under the
Guidelines. Olfano’s objection was rejected by the District
Court and he was sentenced to 188 months, the minimum within
his sentencing range.

       Olfano appealed his sentence. This court remanded for
resentencing after the decision in United States v. Booker, 543
U.S. 220 (2005), because the District Court had not treated the
Guidelines as advisory. 161 Fed. Appx. 224, 225-26 (3d Cir.
2006). We made no explicit ruling regarding the five-level
“pattern of activity” enhancement.

       On remand, after a sentencing hearing, the District Court
again sentenced Olfano to 188 months imprisonment, this time
noting that the Guidelines are only advisory. The District Court
declined to rehear the five-level-enhancement issue, stating that
it understood that this court had affirmed “all the
enhancements.” App. at 99.

       Olfano now appeals the most recent sentence issued by
the District Court.1 He raises three issues, which we discuss
hereafter.

                                II.

A. Five-level sentence enhancement for “pattern of activity”

        First, Olfano again appeals the five-level sentence
enhancement based on the District Court’s finding a “pattern of
activity involving the sexual abuse or exploitation of a minor.”
PSR at ¶ 32. The commentary to section 2G2.2 defines “pattern
of activity involving the sexual abuse or exploitation of a minor”



       1
         The District Court had jurisdiction over this case pursuant
to 18 U.S.C. § 3231. This Court has appellate jurisdiction under 28
U.S.C. § 1291 and 18 U.S.C. § 3742(a).

                                 3
as “any combination of two or more separate instances of the
sexual abuse or sexual exploitation of a minor by the defendant,
whether or not the abuse or exploitation (A) occurred during the
course of the offense; (B) involved the same or different victims;
or (C) resulted in a conviction for such conduct.” U.S.S.G. §
2G2.2 cmt. n.1 (2002).2 This court has held that, as used in the
Guidelines, “sexual abuse” refers to conduct covered by 18
U.S.C. §§ 2241, 2242, 2243, and 2224, while “sexual
exploitation of a minor” refers to conduct described in 18 U.S.C.
§§ 2251(a), (b), and (c)(1)(b). United States v. Ketcham, 80
F.3d 789, 794 (3d Cir. 1996). We did state, in that opinion, that
any activity covered by section 2G2.2 of the Guidelines – which
involves trafficking in child pornography – “does not itself
constitute sexual abuse or exploitation of a minor.” Id. at 795.

        In this case, the District Judge looked to Olfano’s two
previous indecent assaults and determined that “it is obvious in
review of the report that there was a combination of two or more
separate instances of sexual abuse or exploitation of a minor by
the defendant.” App. at 88. The first incident occurred in 1986,
when Olfano was 15 years-old. It involved Olfano’s inserting
his finger into a juvenile female’s vagina. At the age of 17, “he
touched his nine-and-a-half-year-old [half-sister’s] vaginal area
on two or three occasions[.]” Id. Olfano argues that they do not
constitute a pattern because the incidents are too different in
kind, and too remote in time, from the offense to which he pled
guilty.

       The Sentencing Guidelines do not place an explicit time
limit on the previous activities that a court may consider in
finding a “pattern of activity,” and there appears to be no case



       2
          The PSR noted, “Because application of the guidelines in
effect at the time of sentencing are less favorable to the defendant,
the 2002 edition of the Guidelines Manual has been used in this
case pursuant to U.S.S.G. § 1B1.11(b)(1).” PSR at ¶ 27. The
commentary for this section has been modified since 2002, but in
a manner not relevant to the present appeal. Accordingly, we cite
to the Guidelines and related commentary as in effect in 2002.

                                 4
support for the proposition that previous events can be too
remote in time to amount to a pattern. While this court has not
addressed the “remote in time” question in a precedential
opinion, other courts have addressed this issue. See United
States v. Gawthrop, 310 F.3d 405, 414 (6th Cir. 2002) (“Nothing
in § 2G2.2(b)(4) or its current commentary requires a temporal
nexus between any instances of sexual abuse or exploitation.”);
United States v. Woodward, 277 F.3d 87, 90-92 (1st Cir. 2002)
(holding that incidents of sexual abuse that occurred from 1974-
1978 could establish a pattern of activity for purposes of
sentencing in 2001); United States v. Lovaas, 241 F.3d 900, 903-
04 (7th Cir. 2001) (rejecting defendant’s argument that “the
decades-old instances of sexual misconduct upon which the
district court relied are not relevant conduct[.]”). Additionally,
the Court of Appeals for the Ninth Circuit has recently issued an
opinion that upheld a district court’s reliance on sexual
misconduct that occurred at least 35 years ago. United States v.
Garner, 490 F.3d 739 (9th Cir. 2007) (“The plain language of the
Commentary to § 2G2.2 eliminates the need for any temporal or
factual nexus between the offense of conviction and any prior
act of sexual abuse or exploitation; the provision obviously
intends to cast a wide net to draw in any conceivable history[.]”).
We agree that there is no temporal nexus necessary to establish a
pattern of activity of sexual abuse or exploitation of a minor.
The District Court’s reliance on Olfano’s 1986 and 1989 conduct
was therefore not erroneous.

        We also reject Olfano’s argument that his prior conduct is
too factually dissimilar from his present conviction to create a
pattern of activity. The Commentary to the applicable
Guidelines explicitly states that the incidents upon which the
enhancements were based need not be related to the present
offense or involve the same victim. U.S.S.G. § 2G2.2 cmt. n.1
(2002). Although trafficking in child pornography does not
constitute sexual abuse or exploitation of a minor, such
trafficking is precisely the kind of conduct that is subject to a
sentence enhancement based on sexual abuse or exploitation. It
appears that the Guidelines contemplate a difference in kind
between the conduct that leads to conviction and the conduct that
leads to enhancement; trafficking is the offense, but previous

                                5
sexual abuse or exploitation creates the enhancement. The
requisite pattern for enhancement is a “pattern of activity
involving the sexual abuse or exploitation of a minor,” not, as
Olfano seems to argue, a pattern of activity similar to the
incident in question.

       We have not expressly addressed the difference-in-kind
argument, aside from our holding in Ketcham, 80 F.3d at 794-
95, that trafficking in child pornography is not sexual
exploitation of a minor. Although we have yet to interpret
section 2G2.2 in light of the 1996 amendments, several other
courts of appeals have recognized that remote or unrelated
instances of sexual misconduct can support a sentencing
enhancement. See United States v. Ashley, 342 F.3d 850, 852
(8th Cir. 2003) (holding that the district court did not err in using
a previous conviction for gross sexual imposition to enhance a
sentence for receiving child pornography); Gawthrop, 310 F.3d
at 414 (upholding a section 2G2.2(b)(4) enhancement where a
defendant convicted of receiving child pornography had
previously been convicted of sexually abusing his daughter);
Lovaas, 241 F.3d at 904 (affirming sentence enhancement for
defendant who pled guilty to transmitting and possessing child
pornography and had previously engaged in sexual conduct with
two teenage boys); United States v. Anderton, 136 F.3d 747,
750-51 (11th Cir. 1998) (rejecting defendants’ argument that
prior offenses could not be used for enhancement because,
unlike their current conviction, the prior offenses did not involve
producing sexually explicit images of a minor). Olfano has
presented no cases holding that certain acts are too different
from the offense of conviction to properly enhance a section
2G2.2 sentence.

        We recognize Olfano’s argument that his current
conviction is for receipt of child pornography through a
computer, while the prior incidents that constitute his pattern of
activity “do not involve receipt of child pornography, and do not
involve use of a computer.” Nonetheless, the prior incidents
involve inappropriate touching of juvenile females, which
amounts to sexual abuse or exploitation of a minor. We
conclude, based on the plain language of the Guidelines, that

                                  6
because there is no similarity requirement and Olfano’s previous
incidents of sexual misconduct are not so different in kind, they
can be used to enhance his sentence for receiving child
pornography via the Internet. Accordingly, we see no problem
with the District Court’s five-level enhancement under section
2G2.2(b)(4) of the Guidelines.

B. Reasonableness of sentence

      Olfano’s second argument is that the District Court
imposed an unreasonable sentence by again treating the
Sentencing Guidelines as mandatory.

       This Court reviews “deferentially a district court’s
application of the § 3553(a) factors to the facts of a case, and
must ensure only that ‘the district judge imposed the sentence
that he or she did for reasons that are logical and consistent with
the factors set forth in section 3553(a).’” United States v.
Severino, 454 F.3d 206, 210 (3d Cir. 2006) (quoting United
States v. Williams, 425 F.3d 478, 481 (7th Cir. 2005)).
Ultimately, the court reviews a sentence for unreasonableness.
Booker, 543 U.S. at 264.

       The Sentencing Reform Act orders district courts to
“consider” the factors listed in 18 U.S.C. § 3553(a). United
States v. Grier, 475 F.3d 556, 571 (3d Cir. 2007) (en banc). The
party appealing the sentence carries the burden of demonstrating
unreasonableness. United States v. King, 454 F.3d 187, 194 (3d
Cir. 2006).

        In its most recent sentencing decision, Rita v. United
States, 127 S. Ct. 2456 (2007), the Supreme Court granted wide
deference to a district judge in sentencing. Rita, like Olfano,
was sentenced to the minimum term of imprisonment within his
sentencing range, but challenged the sentence as unreasonable.
Id. at 2462. The Supreme Court affirmed the sentence and stated
that “we cannot read the statute (or our precedent) as insisting
upon a full opinion in every case. The appropriateness of brevity
or length, conciseness or detail, when to write, what to say
depends upon circumstances.” Id. at 2468.

                                 7
       Although the Court noted that the trial judge’s sentencing
explanation was somewhat sparse, it stated that “[t]he record
makes clear that the sentencing judge listened to each
argument.” Id. at 2469. Therefore, when the judge simply
called the minimum Guidelines sentence “‘appropriate,’ [h]e
must have believed that there was not much more to say.” Id.

        We have recognized that those sentences that are within
the Guidelines range are more likely to be reasonable than those
that fall outside this range. United States v. Cooper, 437 F.3d
324, 331 (3d Cir. 2006). Although we have declined to give all
Guidelines sentences a rebuttable presumption of
reasonableness, see id., the Supreme Court in Rita decided that
such a presumption, while not mandated, is not impermissible.
127 S. Ct. at 2462.

        The District Court’s explanation for Olfano’s sentence
was brief, but the record shows that it considered both Olfano’s
arguments and the section 3553(a) factors. It also, as required,
stated its reasons for imposing the sentence. Olfano provided
three distinct arguments for a below-Guidelines sentence: his
youth, the fact that his prior sexual misconduct was 16 and 18
years prior, and his vulnerability in prison. In delivering the
sentence, the District Court stated that it had considered the
section 3553(a) factors, “including the necessity of deterrence
and just punishment, promotion of respect for the law, protection
of the public, and assurance of correctional treatment[.]” App. at
105. While a listing of factors may not, alone, be sufficient to
demonstrate the necessary consideration of relevant factors, the
record as a whole does indicate such consideration in this case.
The Court stated that the sentence reflected “full consideration
of all the facts, including the nature and seriousness of the
offense, the history and characteristics of Mr. Olfano, [and] the
kinds of sentences available[.]” Id. Finally, the Court briefly
recited the facts surrounding the guilty plea, which included “a
significant history of sexually abusing children[.]” App. at 106.
The statement regarding the past sexual abuse does, in part,
speak to Olfano’s argument that this abuse occurred too long ago
to carry any significance.



                                8
       This situation seems very similar to the sentencing
described by the Supreme Court in Rita. As in Rita, the District
Judge apparently determined that defendant’s arguments were
simply insufficient to warrant a below-Guidelines sentence.

       Because the record is adequate to support the finding that
the District Court considered the section 3553(a) factors and
because the ultimate sentence was not unreasonable, we will
affirm the District Court’s 188-month sentence.

C. District Court’s refusal to grant continuance prior to
sentencing

       Finally, Olfano’s third contention is that the District
Court abused its discretion in refusing to grant him a
continuance so that he could better prepare for the sentencing
hearing. Olfano also includes with this argument an ineffective
assistance of counsel claim, primarily regarding counsel’s failure
to endorse his client’s continuance request.

        We review the trial court’s refusal to grant a continuance
for an abuse of discretion. United States v. Irizarry, 341 F.3d
273, 305 (3d Cir. 2003) (citing United States v. Kikumura, 947
F.2d 72, 78 (3d Cir. 1991)). Because there is no “mechanical
test[]” to determine where there exists a violation of due process,
courts must examine the particular circumstances of each case.
Ungar v. Sarafite, 376 U.S. 575, 589 (1964). When presented
with a motion for continuance, a court should consider the
following factors: the efficient administration of criminal justice,
the accused’s rights, and the rights of other defendants whose
trials may be delayed as a result of the continuance. United
States v. Fischbach & Moore, Inc., 750 F.2d 1183 (3d Cir.
1984).

        Although this Court has not further elaborated on the
abuse of discretion standard, others have held that a court will
only vacate a sentence based on a refusal to continue a
sentencing hearing where the denial was arbitrary and it
substantially impaired the defendant’s opportunity to receive a
fair sentence. United States v. Garcia, 78 F.3d 1457, 1467 (10th

                                 9
Cir. 1996); United States v. Speed, 53 F.3d 643, 644-645 (4th
Cir. 1995); United States v. Booth, 996 F.2d 1395, 1397-98 (2d
Cir. 1993) (affirming denial of a continuance request despite
finding that the arguments in favor of the continuance were not
frivolous).

       Olfano argues that, in light of the open dispute between
him and his counsel regarding the need for a continuance, the
District Court should have allowed the continuance, or at least
given him and his counsel an opportunity to confer.

        At the sentencing hearing, counsel informed the District
Court that Olfano “doesn’t feel prepared for this sentencing here
today, because his mother is not present, and he was hoping to
get a letter, perhaps, from the family as well as a past employer.”
App. at 101. Counsel then told the judge that he thought “that
we’re prepared, but I know Mr. Olfano has asked me to advise
the Court[.]” Id. Counsel then explained to the court that
Olfano hoped that the letters would lead to a lower sentence by
providing evidence of Olfano’s rehabilitative needs and other
sentencing factors. However, counsel added his opinion that,
because the offense involved family, he didn’t know “how
persuasive [the letters] would be . . . . I don’t know if it is
appropriate to submit a type of letter that he’s suggesting. So I
don’t know.” App. at 102. After hearing this explanation, the
District Judge noted that Olfano had plenty of time – two weeks
– to contact his family regarding the hearing, and saw “no reason
whatsoever” to delay the hearing, especially “with the Court’s
calendar and our schedule.” Id. Because this decision to refuse
the continuance was neither arbitrary nor prejudicial, we will not
disturb the District Court’s ruling.

       Even if the sentencing judge did act arbitrarily, there is
nothing in the record to show that any person had actually agreed
to submit a letter on Olfano’s behalf. Moreover, there is no
reason to believe that these letters, if written, would have helped
Olfano at sentencing. We see no abuse of discretion in denying
the continuance request.

D. Ineffective assistance of counsel

                                10
        Olfano embeds an ineffective assistance of counsel
argument within his argument regarding the continuance. This
Court generally does not review Sixth Amendment ineffective
assistance of counsel claims on direct appeal. United States v.
McLaughlin, 386 F.3d 547, 555 (3d Cir. 2004). This is not a
case “[w]here the record is sufficient to allow determination of
ineffective assistance of counsel[.]” United States v. Headley,
923 F.2d 1079, 1083 (3d Cir. 1991). While the record does
contain Olfano’s statements from the sentencing hearing, there is
no way of knowing what led to the disagreement between Olfano
and counsel regarding the need for a continuance. Without a
record regarding this issue, we cannot determine whether
counsel failed to effectively represent his client. Nor is it clear
that Olfano was prejudiced by counsel’s performance. Even if
counsel had asked for a continuance, it is unclear whether the
District Judge would have granted it. And even if the
continuance were granted, there is no reason to believe that
Olfano’s sentence would have ultimately been any different.
Furthermore, with respect to the five-level sentence
enhancement, it is highly unlikely that, even if Mr. Bartolai had
more forcefully argued that the District Court should reconsider
the issue, the District Judge would have suddenly changed his
mind. Nothing had changed since his previous decision, in the
original sentencing hearing, to apply this enhancement.

                               III.

       For the reasons set forth, we will affirm the judgment of
sentence without prejudice to Olfano’s right to file a collateral
proceeding alleging ineffective assistance of counsel should he
wish to pursue that claim.




                               11
