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


7-31-2007

USA v. Gormley
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-3132




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                                               NOT PRECEDENTIAL

       UNITED STATES COURT OF APPEALS
            FOR THE THIRD CIRCUIT


                      No. 06-3132


           UNITED STATES OF AMERICA

                             v.

               LAURENCE GORMLEY,

                       A p p e lla n t




     On Appeal from the United States District Court
        for the Eastern District of Pennsylvania
                  D.C. No. 04-cr-00600
         District Judge: Hon. Petrese B. Tucker
                       _________

       Submitted Under Third Circuit LAR 34.1(a)

                      July 12, 2007

Before: SLOVITER, ALDISERT and ROTH, Circuit Judges.


                  (Filed July 31, 2007)
                               OPINION OF THE COURT




ALDISERT, Circuit Judge.

       Laurence Gormley appeals the District Court’s order denying his Petition for Writ

of Habeas Corpus, pursuant to 28 U.S.C. § 2255. Gormley complains that, during

sentencing, his attorney failed to object to a five-level enhancement under U.S.S.G. §

2G2.2(b)(2)(B). He now asks this Court to reverse the ruling of the District Court and

grant resentencing on the ground of ineffective assistance of counsel. We conclude that

Gormley’s argument lacks merit and, accordingly, we will affirm the judgment of the

District Court and deny the request for a new sentencing hearing.

                                            I.

       The parties are familiar with the facts and proceedings, so we will only briefly

revisit them here. On September 28, 2004, a grand jury in the Eastern District of

Pennsylvania charged Laurence Gormley with two counts of distribution of child

pornography, in violation of 18 U.S.C. § 2252(a)(1), and one count of possession of child

pornography, in violation of 18 U.S.C. § 2252(a)(4). Four months later, Gormley chose

to enter into a guilty plea before District Judge Petrese Tucker. During the plea hearing,

the District Court warned Gormley:




                                             2
              [I]f the case went to trial, the government would present
              witnesses. In the case of a guilty plea the government reads a
              summary of what the evidence would show if the case goes to
              trial. If you decide to plead guilty, you will be pleading guilty
              to the evidence as summarized by the assistant U.S. attorney,
              so it is important that you listen to what she reads.

App. 42. Gormley acknowledged that he understood the District Court’s instruction.

       The government then detailed how Gormley admitted to possessing thousands of

still images and dozens of videos containing child pornography. The recitation of the

evidence also described how Gormley used his home computer to transmit images of

child pornography through Internet chat rooms. The government concluded with the

following: “Gormley distributed these materials for reciept and expectation of receipt of a

thing of value but not for pecuniary gain.” App. 45a. Immediately thereafter, Gormley

pleaded guilty.

       At the start of the sentencing phase, the presentence investigation report (“PSR”)

prepared by the Probation Office recommended enhancing Gormley’s sentence under

U.S.S.G. § 2G2.2(b)(2)(B). This section, which pertains to “material involving the sexual

exploitation of a minor,” provides for a five-step increase in the offense level where the

conviction involves the “distribution for the receipt, or expectation of receipt, of a thing

of value, but not for pecuniary gain.” Id. Put simply, the government sought to enhance

Gormley’s sentence because he traded pornographic images of children online.

       Before the sentencing hearing, defense counsel reviewed the PSR with Gormley,

and Gormley did not dispute its findings within the statutorily-mandated period. See Rule

                                              3
32(f), Federal Rules of Criminal Procedure (stating that a party must communicate in

writing to the probation officer “any objections . . . to material information . . . contained

in or omitted from the report” within 14 days of receiving the presentence investigation

report). At sentencing, neither Gormley nor his lawyers objected to the enhancement and,

accordingly, the District Court imposed a five-level increase to the offense level under

U.S.S.G. § 2G2.2(b)(2)(B). Judge Tucker then calculated Gormley’s sentencing range at

121 to 151 months, based on a criminal history score of I and an offense level of 32. The

District Court ultimately sentenced Gormley to 120 months of imprisonment.

       Unsatisfied with the outcome of the hearing, Gormley executed a habeas corpus

motion, claiming that he was denied the effective assistance of counsel at sentencing.

Specifically, Gormley argued that his counsel should have objected to the five-level

enhancement under U.S.S.G. § 2G2.2(b)(2)(B) because “the evidence did not establish

that [he] distributed pornographic material in exchange for something of value.” App.

96a. The District Court originally denied the petition, as well as a request for a certificate

of appealability (“COA”). Upon reconsideration, however, Judge Tucker granted the

request for the COA pursuant to 23 U.S.C. § 2253. We now have jurisdiction under 18

U.S.C. § 1291 and review the District Court’s legal conclusions de novo. See United

States v. Cepero, 224 F.3d 256, 258 (3d Cir. 2000).

                                              II.

       Gormley presents one issue on appeal. He contends that his attorney’s failure to



                                               4
object to the five-level sentencing enhancement violated his Sixth Amendment right to

effective counsel. The law in this area is well-settled. We analyze ineffective assistance

claims under the two-step analysis set forth by the Supreme Court in Strickland v.

Washington, 466 U.S. 668 (1984). Gormley must first demonstrate that his attorney’s

performance was deficient. Id. at 687. The standard for attorney performance is

“reasonably effective assistance,” or “reasonableness under prevailing professional

norms.” Id. at 687, 688. Under the second step of the Strickland analysis, Gormley must

show that his attorney’s deficient performance prejudiced the outcome of his case. We

ask whether a “reasonable probability” exists that counsel’s unprofessional errors affected

the outcome of the proceeding. Id. at 694.

       With these teachings in mind, we turn to the facts of the case at hand. Gormley

contends that his counsel’s failure to object to the sentencing enhancement under

U.S.S.G. § 2G2.2(b)(2)(B) amounts to constitutional ineffectiveness because there was no

factual basis to conclude that he traded pornographic images online. See Jansen v.

United States, 369 F.3d 237, 244 (3d Cir. 2004) (“Where defense counsel fails to object

to an improper enhancement under the Sentencing Guidelines, counsel has rendered

ineffective assistance.”). We do not agree. At his plea colloquy Gormley did not contest

the factual recitation by the Government, which included the allegation of his trading

pornographic files. Moreover, before sentencing, Gormley did not object to the statement

of facts in the PSR alleging that he traded material through the internet. See Rule 32(f),



                                             5
Federal Rules of Criminal Procedure;1 Rule 32(i)(3)(A), Federal Rules of Criminal

Procedure (a sentencing court may accept any undisputed portion of the PSR as a finding

of fact); United States v. Campbell, 295 F.3d 398, 406 (3d Cir. 2002) (same). We also

note that the government was prepared to offer evidence demonstrating that child

pornographers, such as Gormley, rely on trading images in internet chat rooms to acquire

new pictures and videos. Consequently, we think Gormley’s attorney made a reasonable

tactical decision to focus his efforts on matters other than the enhancement under

U.S.S.G. § 2G2.2(b)(2)(B).

       Even if we found that Gormley had satisfied the first part of the Strickland test, his

petition would still fail. Nowhere does he show that his counsel’s alleged mistake

affected the outcome of his sentence. That is, Gormley fails to demonstrate a reasonable

probability that the District Court would have lifted the proposed enhancement if his

attorney had objected. See Strickland, 466 U.S. at 694. Gormley offers no argument to

rebut the contention in the PSR that he traded illegal pornographic material. He puts forth

no basis for concluding that his distributions of child pornography were merely gratuitous

or that he only received images. Accordingly, Gormley can not demonstrate the prejudice

necessary to satisfy the second prong of the Strickland test.

                                            ******



       1
         Rule 32(f) provides that a party must communicate in writing to the probation
officer “any objections . . . to material information . . . contained in or omitted from the
report” within 14 days of receiving the presentence investigation report.

                                                 6
      We have considered all of the arguments advanced by the parties and conclude that

no further discussion is necessary. Accordingly, the judgment of the District Court will

be affirmed.




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