     11-2549-cr
     United States v. Cossey

                          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
 2       for the Second Circuit, held at the Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 23rd day of April, two thousand twelve.
 5
 6       PRESENT:
 7                    DENNIS JACOBS,
 8                         Chief Judge,
 9                    AMALYA L. KEARSE,
10                    PETER W. HALL
11                         Circuit Judges.
12
13       - - - - - - - - - - - - - - - - - - - -X
14       United States,
15                Appellee,
16
17                    -v.-                                               11-2549-cr
18
19       Gary Cossey,
20                Defendant-Appellant.
21       - - - - - - - - - - - - - - - - - - - -X
22
23       FOR DEFENDANT-APPELLANT:              George E. Baird and Molly
24                                             Corbett, Assistant Federal
25                                             Public Defenders, for Lisa A.
26                                             Peebles, Acting Federal Public
27                                             Defender, Albany, NY.
28
29       FOR APPELLEE:                         Elizabeth S. Riker and Lisa M.
30                                             Fletcher, Assistant United
31                                             States Attorneys, for Richard S.
32                                             Hartunian, United States
33                                             Attorney for the Northern
34                                             District of New York, Syracuse,
35                                             NY.

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 1
 2        Appeal from a judgment of the United States District
 3   Court for the Northern District of New York (Mordue, then-
 4   Chief Judge).
 5
 6        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
 7   AND DECREED that the judgment of the District Court is
 8   AFFIRMED.
 9
10        Defendant-Appellant Gary Cossey, who pleaded guilty to
11   possession of child pornography, 18 U.S.C. § 2252A(a)(5)(B),
12   appeals the 78-month sentence imposed on re-sentencing after
13   remand, see United States v. Cossey, 632 F.3d 82 (2d Cir.
14   2011) (per curiam). We assume the parties’ familiarity with
15   the underlying factual allegations, the procedural history
16   of the case, and the issues on appeal.
17        We generally review sentences for reasonableness under
18   the “deferential abuse-of-discretion standard.” Gall v.
19   United States, 552 U.S. 38, 41 (2007); accord United States
20   v. Cavera, 550 F.3d 180, 189 (2d Cir. 2008) (en banc).
21   Reasonableness review has both a substantive and a
22   procedural dimension. United States v. Whitley, 503 F.3d
23   74, 76 (2d Cir. 2007).
24   [2] In reviewing for procedural reasonableness, this Court
25   considers such factors as whether the district court (1)
26   failed to calculate (or improperly calculated) the
27   Guidelines range, (2) treated the Guidelines as mandatory,
28   (3) failed to consider the Section 3553(a) factors, (4)
29   selected a sentence based on clearly erroneous factual
30   findings, or (5) failed to adequately explain the sentence
31   (including an explanation for any deviation from the
32   Guidelines range). Gall, 552 U.S. at 51.
33        Cossey argues that the district court failed to
34   consider several Section 3553(a) factors, including his
35   personal history and his efforts at rehabilitation. The
36   premise of that argument is that the district court must
37   have ignored particular factors or characteristics unless
38   they were mentioned during sentencing. However, “we never
39   have required a District Court to make specific responses to
40   points argued by counsel in connection with sentencing.”
41   United States v. Bonilla, 618 F.3d 102, 111 (2d Cir. 2010).
42   Nor do we “insist that the district court address every
43   argument the defendant has made or discuss every § 3553(a)
44   factor individually.” United States v. Villafuerte, 502
45   F.3d 204, 210 (2d Cir. 2007). In any event, the district
46   court stated on the record that it had considered (inter
47   alia) the submissions by counsel, which included the

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 1   information Cossey claims was not considered. The district
 2   court also heard statements from Cossey and his family,
 3   which covered these same issues. The district court’s
 4   consideration of mitigating circumstances is further evident
 5   from imposition of the minimum within-Guidelines sentence.
 6        Cossey criticizes the district court for not imposing a
 7   below-Guidelines sentence based on the report of his
 8   evaluation by Dr. Jacqueline Bashkoff. A district court is
 9   not required “to accept a psychologist’s conclusions at face
10   value” where, for example, a “psychologist’s report cannot
11   be squared with the court’s own judgment of the defendant’s
12   culpability and the danger he poses to society.” See United
13   States v. DeSilva, 613 F.3d 352, 356-57 (2d Cir. 2010) (per
14   curiam). Dr. Bashkoff’s conclusions were contradicted by
15   Cossey’s initial statement and admissions to law-enforcement
16   officers in 2006.
17        Cossey argues that the district court may have relied
18   on information in the Pre-Sentence Report that was the
19   subject of factual disputes that the district court failed
20   to resolve. See Fed. R. Crim. P. 32(i)(3)(B). But the
21   district court, in providing the reasons for imposing
22   Cossey’s sentence, did not mention, or give any other
23   indication that he relied upon, any of those disputed facts.
24   Instead, it relied on the evidence uncovered from the
25   investigation of Cossey and Cossey’s admissions to the
26   police.
27        Finally, Cossey contends that his sentence is disparate
28   from the sentences imposed on others, similarly situated.
29   See 18 U.S.C. § 3553(a)(6). Cossey has not shown that his
30   sentence is disparate from other “defendants with similar
31   records who have been found guilty of the similar conduct.”
32   Id. Cossey’s long history of viewing and possessing these
33   materials coupled with his inability to permanently stop
34   (despite his best efforts) support his sentence. See
35   Cossey, 632 F.3d at 88-89 (vacating previous sentence on
36   other grounds but observing that “[t]he record also contains
37   . . . evidence that would support the district court’s
38   decision that Cossey would re-offend based on an appropriate
39   consideration that he did in fact re-offend at least once”).
40   [2] Cossey also argues that his sentence is substantively
41   unreasonable. In assessing the substantive reasonableness
42   of a sentence, this Court “take[s] into account the totality
43   of the circumstances, giving due deference to the sentencing
44   judge’s exercise of discretion, and bearing in mind the
45   institutional advantages of district courts.” Cavera, 550
46   F.3d at 190. Given the broad range of relevant factors,
47   “the duty of a reviewing court is not to identify the

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 1   ‘right’ sentence but, giving due deference to the district
 2   court’s exercise of judgment, to determine whether the
 3   sentence imposed falls within the broad range that can be
 4   considered reasonable under the totality of the
 5   circumstances.” United States v. Jones, 531 F.3d 163, 174
 6   (2d Cir. 2008). Thus, review for substantive
 7   unreasonableness “provide[s] a backstop for those few cases
 8   that, although procedurally correct, would nonetheless
 9   damage the administration of justice because the sentence
10   imposed was shockingly high, shockingly low, or otherwise
11   unsupportable as a matter of law.” United States v. Rigas,
12   583 F.3d 108, 123 (2d Cir. 2009).
13        The district court imposed the minimum within-
14   Guidelines sentence. We do not assume that a Guidelines
15   sentence is reasonable; but “in the overwhelming majority of
16   cases, a Guidelines sentence will fall comfortably within
17   the broad range of sentences that would be reasonable in the
18   particular circumstances.” United States v. Fernandez, 443
19   F.3d 19, 27 (2d Cir. 2006). Here, in light of the “fact
20   [that Cossey] re-offend[ed] at least once,” Cossey, 632 F.3d
21   at 89, it cannot be said that the sentence fell outside the
22   range of reasonable sentences or was otherwise unsupportable
23   as a matter of law.
24        Cossey argues nevertheless that his sentence runs afoul
25   of United States v. Dorvee, 616 F.3d 174 (2d Cir. 2010) (as
26   amended). In Dorvee, we held that the 240-month sentence of
27   a first-time offender who pleaded guilty to distribution of
28   child pornography was procedurally and substantively
29   unreasonable. Id. at 188. In so doing, we observed that
30   courts determining sentences for offenses involving child
31   pornography must be careful not to impose sentences that do
32   not conform with the Section 3553(a) factors. Id. at 184-
33   88. The instant case is easily distinguished. Whereas in
34   Dorvee the defendant was sentenced to 240 months, the
35   statutory maximum for his offense, here Cossey was sentenced
36   to 78 months, which, though 18 months above the statutory
37   minimum, was 42 months below the statutory maximum for his
38   offense. And, unlike the sentence imposed in Dorvee, which
39   was also subject to procedural error, the sentence imposed
40   in this case is procedurally sound, and, as explained above,
41   was reasonable under the totality of the circumstances.
42

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1        We have considered all of Cossey’s additional arguments
2   and find them to be without merit. Accordingly, the
3   judgment of the District Court is AFFIRMED.
4
5                              FOR THE COURT:
6                              Catherine O’Hagan Wolfe, Clerk
7
8




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