                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                     No. 10-2800
                                     ___________

                           UNITED STATES OF AMERICA


                                           v.

                               DANIEL M. SULLIVAN,

                                                       Appellant.
                                     ___________

                           On Appeal from the District Court
                        for the Middle District Of Pennsylvania
                                (D.C. Cr. No. 08-CR-280)
                       District Judge: Hon. James F. McClure, Jr.
                                      ___________

                     Submitted Under Third Circuit L.A.R. 34.1(a)
                                On January 24, 2011

    Before: FUENTES and CHAGARES, Circuit Judges, and POLLAK,1 District Judge.

                           (Opinion Filed: February 17, 2011)



                              OPINION OF THE COURT




1
 Honorable Louis H. Pollak, Judge of the United States District Court for the Eastern
District of Pennsylvania, sitting by designation.
FUENTES, Circuit Judge:

      Appellant Daniel M. Sullivan appeals from the District Court’s sentence of 180

months’ imprisonment for distribution of child pornography under 18 U.S.C. §

2252A(a)(2)(B). For the reasons that follow, we will affirm.

                                            I.

      Because we write for the parties, we discuss the facts only to the extent necessary

for resolution of the issues raised on appeal. During a two week period in 2008, Sullivan

participated in 15 internet chat sessions with FBI Agent James Kyle, who was posing as a

13-year-old boy. During that time, Sullivan forwarded 137 images of child pornography

to Agent Kyle. On July 17, 2008, Sullivan was arrested at his residence, search warrants

were executed, and Sullivan’s computer was seized. An analysis of the computer’s hard

drive revealed 292 images of child pornography, including the 137 images that were

forwarded to Agent Kyle. Among those images that had not been forwarded to Agent

Kyle were three images determined to contain sadistic or masochistic conduct involving

children. Sullivan was charged with one count of Distributing Child Pornography under

18 U.S.C. § 2252A(a)(2)(B) to which he pled guilty on December 29, 2009.

      The presentence report explains that Agent Kyle, while posing as a 13-year-old

boy, was chatting with another individual named Valentine, himself a collector of child

pornography. When the discussion reached the topic of the fictitious 13-year-old having

sex with an adult, Valentine provided Agent Kyle with Sullivan’s internet address. The

internet chat sessions between Agent Kyle and Sullivan then began.



                                            2
       The presentence report also referenced two prior convictions Sullivan had received

for inappropriate contact with minor children. In 1985, Sullivan received a one- to three-

year sentence for sexual assault arising from police officers’ discovery of Sullivan in a

car with two partially clothed children, ages five and six. The children told police that

Sullivan had attempted to engage in sexual intercourse with the five-year-old girl while

the six-year-old boy watched for approaching automobiles. In 2001, Sullivan was

sentenced to a nine-month term of imprisonment and two years of probation for three

counts of exposing himself to children under the age of 12. On November 17, 2003, it

was determined that while on probation, Sullivan had stood in the doorway of his

residence while naked and made noises at children so they would turn and look in his

direction before raising his leg to expose his genitals. His probation was revoked and he

was sentenced to seven months’ imprisonment.

       The presentence report indicated that Sullivan’s criminal history category was II

and that his offense level was 35. This placed his guideline sentencing range at 188 to

235 months. Sullivan objected to the presentence report on four grounds. First, he

disputed its finding that he was subject to a 15-year statutory mandatory minimum

sentence under 18 U.S.C. § 2252A(b)(1) due to his prior convictions. Sullivan also

argued for a downward departure under U.S.S.G. § 5H1.4, due to a number of health

issues. Further, Sullivan argued that because he was charged only with distribution rather

than possession of child pornography, the presentence report erred in applying a 3-level

enhancement under U.S.S.G. § 2G2.2(b)(7)(B) for the 292 images he possessed, as

opposed to the 137 images he distributed. Sullivan also contended that the presentence

                                             3
report erred in applying a 4-level enhancement under U.S.S.G. § 2G2.2(b)(4) for the three

images of sadistic or masochistic conduct, given that those images were never distributed

to Agent Kelly.

      At sentencing, the District Court agreed with Sullivan that the 15-year mandatory

minimum sentence did not apply. However, the Court rejected Sullivan’s arguments as

to the enhancements under U.S.S.G. §§ 2G2.2(b)(4) & (b)(7)(B), concluding that his

possession of the full 292 images and 3 images of sadistic or masochistic conduct

constituted relevant conduct under U.S.S.G. § 1B1.3. Finally, although the District Court

declined to depart under U.S.S.G. § 5H1.4, it expressly factored-in Sullivan’s poor health

in imposing a non-guideline sentence of 180 months under 18 U.S.C. § 3553(a), which

was 8 months below the advisory guidelines’ sentencing range.

      On appeal, Sullivan challenges the District Court’s determination that his

possession of the full 292 images and 3 images of sadistic or masochistic conduct were

relevant conduct for purposes of sentencing. He also challenges the District Court’s

refusal to grant a departure for health reasons under U.S.S.G. § 5H1.4. Finally, Sullivan

contends that the sentence of 180 months was substantively unreasonable.

                                            II.

                                            A.

      The District Court had subject matter jurisdiction over this criminal matter under

18 U.S.C. § 3231. This Court exercises jurisdiction over Sullivan’s appeal under 18

U.S.C. § 3742 and 28 U.S.C. § 1291.



                                            4
       Our review of whether a district court abused its discretion in imposing a sentence

upon a criminal defendant is twofold. We first consider whether the sentencing court

committed any procedural errors “such as failing to calculate (or improperly calculating)

the Guidelines range, treating the Guidelines as mandatory, failing to consider the §

3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to

adequately explain the chosen sentence-including an explanation for any deviation from

the Guidelines range.” United States v. Tomko, 562 F.3d 558, 567 (3d Cir. 2009) (en

banc) (quoting Gall v. United States, 552 U.S. 38, 51 (2007)). If the district court

committed no procedural error, we consider the sentence’s substantive reasonableness. A

sentence is substantively unreasonable only if “no reasonable sentencing court would

have imposed the same sentence on that particular defendant for the reasons the district

court provided.” Id. at 568.

                                             B.

       Sullivan argues that because he pled guilty to only distributing child pornography,

rather than possessing it, his “relevant conduct” for purposes of § 1B1.3 of the Guidelines

includes only those images he distributed to Agent Kyle. “Relevant conduct” is defined

by the Guidelines as “all acts and omissions committed . . . that occurred during the

commission of the offense of conviction, [or] in preparation for that offense . . .” or “that

were part of the same course of conduct or common scheme or plan as the offense of

conviction.” §1B1.3(a). Whether conduct is part of the “same course of conduct”

depends on “whether offenses are sufficiently connected or related to each other” as

determined by such factors as the “degree of similarity of the offenses, the regularity

                                              5
(repetitions) of the offenses, and the time interval between the offenses.” § 1B1.3 cmt. n.

9(B). “Importantly, the test is a sliding scale, so even if one factor is absent, relevant

conduct may be found where at least one other factor is strong.” United States v. Kulick,

--- F.3d ---, 2010 WL 5365491, at *5, (3d Cir. 2010) (quoting United States v. Wilson,

106 F.3d 1140, 1143 (3d Cir. 1997)).

       As to the temporal factor, “[a]s a general principle, various courts have found that

a period of separation of over one year negated or weighed against a finding of temporal

proximity.” Id. at *6 (internal quotations omitted). Here, it is possible, albeit unlikely,

that Sullivan obtained some of the 155 images that he did not distribute during the very

brief period after his internet chats with Agent Kyle but before his arrest. However, any

images that were obtained during that period were clearly possessed well within one year

of Sullivan’s crime of distribution, thus easily satisfying the temporal factor.

       In evaluating the similarity factor, “a court primarily should consider the degree of

similarity between the offenses, but can also look to the commonality of the victims, the

commonality of offenders, the commonality of purpose, and the similarity of modus

operandi.” Id. Here, Sullivan’s possession of child pornography was quite similar to his

distribution of it. The former entailed the possession of 292 images, including the 3

images with sadistic or masochistic conduct, and the latter the further step of distributing

137 of those same 292 images on Sullivan’s hard drive. There was a single common

offender and a similar modus operandi in Sullivan’s use of his computer to obtain,

possess, and then distribute the images. Further, the only reasonable inference to draw

was that there was a commonality of purpose in Sullivan’s prurient interest in both

                                              6
possessing and distributing to someone he believed to be a 13-year-old boy, those same

images. The similarity factor is also established.

       As to the regularity factor, “which considers the number of repetitions of the

offenses,” id. at *8, Sullivan obviously engaged in repeated instances of possessing and

distributing the images, further indicating a common course of conduct in his dealings

with child pornography. While the presence of regularity is not as strong for Sullivan’s

possession of sadistic or masochistic images, even three instances of possession

constitutes some amount of repetition.

       Accordingly, because all three factors have been established, the District Court did

not commit procedural error in concluding that the full 292 images were relevant conduct

under § 1B1.3. Further, while there was not as much repetition with regard to the sadistic

or masochistic images, given the strength of the other two factors, we conclude that those

images are relevant to his charged offense as well. See Kulick, --- F.3d ---, 2010 WL

5365491 at *5 (“Importantly, the test is a sliding scale, so even if one factor is absent,

relevant conduct may be found where at least one other factor is strong.”).

                                             C.

       Sullivan next argues that the District Court erred when it denied him a downward

departure for his extraordinary physical impairment under U.S.S.G. § 5H1.4. Sullivan

suffers from chronic obstructive pulmonary disease, emphysema, sleep apnea, and

blindness in his right eye. The District Court expressly and carefully considered

Sullivan’s health, concluding that it was not so extraordinary as to warrant a downward

departure, but finding it a sufficiently salient factor so as to vary from the Guidelines

                                              7
range by eight months under 18 U.S.C. § 3553(a). The District Court’s careful analysis

of Sullivan’s health problems and their relevance to his sentence was neither procedural

nor substantive error.

                                              D.

       Finally, Sullivan argues that the 180-month sentence imposed by the District Court

was unreasonable under 18 U.S.C. § 3553(a). Here, after acknowledging all of the

relevant factors for consideration, the District Court stated:

              The Court has also considered the history and characteristics of the
       defendant . . . [and] is necessarily aware of the circumstances of the
       offense, albeit 27 years ago, in New Hampshire, and of the subsequent ones
       in Maine, all of which reflect a continuing criminal conduct of a related
       nature by the defendant for a long period of time.
              There’s nothing in the history or characteristics, really, of the
       defendant that are favorable to him with respect to the sentence. They
       militate toward a more lengthy sentence.

(App. 52a.)

       While it is true that Sullivan was not involved with the actual production of child

pornography, we note that he has a 1985 conviction for sexually assaulting two children

and in 2001 and 2003 he was found to have exposed himself to children on multiple

occasions. The presentence report also indicates that Agent Kelly was given Sullivan’s

internet address because he was someone who would be interested in sexual contact with

a 13-year-old.

       Accordingly, the District Court was not unreasonable in concluding from

Sullivan’s “continuing criminal conduct of a related nature,” that a sentence within or

near the guideline range was appropriate. Sullivan’s potential for actual improper contact


                                              8
with children also easily distinguishes his case from the decision in United States v.

Dorvee, 616 F.3d 174 (2d Cir. 2010), where the Second Circuit vacated a 240-month

sentence for distribution of child pornography on the grounds of substantive

unreasonableness. In Dorvee, the Court highlighted the fact that there was no evidence

that the defendant had ever had or would likely have inappropriate contact with a minor.

Id. at 183-84. In contrast, it is clear that Sullivan has previously harmed children and that

it is possible he might do so again in the future.

                                             III.

       For the foregoing reasons, we will affirm the District Court’s judgment.




                                              9
