10-577-cr
United States v. Ryan
                            UNITED STATES COURT OF APPEALS
                                FOR THE SECOND CIRCUIT

                                      SUMMARY ORDER
RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUM M ARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY
THIS COURT’S LOCAL RULE 32.1.1 AND FEDERAL RULE OF APPELLATE PROCEDURE 32.1. WHEN
CITING A SUM M ARY ORDER IN A DOCUM ENT FILED W ITH TH IS CO URT, A PARTY M UST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (W ITH THE NOTATION
“SUM M ARY ORDER”). A PARTY CITING A SUM M ARY ORDER M UST SERVE A COPY OF IT ON ANY
PARTY NOT REPRESENTED BY COUNSEL.



        At a stated Term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,
on the 28th day of January, two thousand eleven,

Present:    RALPH K. WINTER,
            ROSEMARY S. POOLER,
            PETER W. HALL,
                        Circuit Judges.
_____________________________________________________

UNITED STATE OF AMERICA,

                                                      Appellee,

                          -v-                                        10-577-cr

JOHN PERRY RYAN,



                                                      Defendant-Appellant.


Appearing for Appellant:        David J. Williams, St. Johnsbury, VT.

Appearing for Appellee:         Tristram J. Coffin, United States Attorney; Annika Frostick,
                                Gregory L. Waples, Assistant United States Attorneys, on the brief,
                                Burlington, VT.

       Appeal from the United States District Court for the District of Vermont (Sessions, J.).

     ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED.
        Defendant-Appellant John Perry Ryan (“Ryan”) pleaded guilty to two counts of a second
superseding indictment charging him with transporting child pornography in violation of 18
U.S.C. § 2252(a)(1), and admitted to an allegation of forfeiture under 18 U.S.C. § 2253. On
February 8, 2010, Chief Judge Sessions of the District of Vermont sentenced Ryan to ninety
months’ imprisonment, followed by five years of supervised release, a mandatory assessment of
$200, and forfeiture of his interest in his house. Ryan now appeals. We assume the parties’
familiarity with the underlying facts, procedural history, and specification of issues for review.

        On appeal Ryan first argues that his sentence is substantively unreasonable, especially in
light of our Court’s decision in United States v. Dorvee, 616 F.3d 174 (2d Cir. 2010). Second,
Ryan argues that the mandatory minimum for sentencing provisions under 18 U.S.C. § 2252
violates the Constitution’s Separation of Powers provision, the Eighth Amendment’s prohibition
on grossly disproportionate sentences, and the Equal Protection clause of the Fifth Amendment
by treating similarly situated offenders, for instance drug offenders vis-à-vis child pornography
offenders, differently. Third, Ryan argues that the district court erred when it failed to exclude
illegally seized evidence at sentencing that it had previously and properly suppressed, and
requests this Court to reconsider its ruling in United States v. Tejada, 956 F.2d 1256 (2d Cir.
1992).

        The Presentence Report (“PSR”) determined Ryan’s total offense level at thirty-seven.
Because his crime was transporting child pornography, it carries a statutory minimum of five
years’ imprisonment. 18 U.S.C. § 2252(b)(1). Applying a three-level deduction for acceptance
of responsibility, Judge Sessions agreed with the total offense level of thirty-four set forth in the
PSR, which yielded a Guidelines sentence of between 151 to 188 months. Pursuant to the factors
under 18 U.S.C. § 3553(a), the court decided to decrease the total offense by five levels, to
twenty-nine. The Guidelines range for that offense total was between 87 to 108 months. The
court sentenced Ryan to ninety months’ imprisonment.

        As an initial matter, the standard of review for sentencing is one of “reasonableness.”
United States v. Booker, 543 U.S. 220, 260-62 (2005). Review to determine whether a sentence
is “reasonable” involves both “an examination of the length of the sentence (substantive
reasonableness) as well as the procedure employed in arriving at the sentence (procedural
reasonableness).” United States v. Johnson, 567 F.3d 40, 51 (2d Cir. 2009). Reasonableness
review is akin to a “deferential abuse-of-discretion standard.” Gall v. United States, 552 U.S. 38,
52 (2007).

        To impose a procedurally reasonable sentence, a district court must “(1) normally
determine the applicable Guidelines range, (2) consider the Guidelines along with the other
factors under § 3553(a), and (3) determine whether to impose a Guidelines sentence or a non-
Guidelines sentence.” United States v. Villafuerte, 502 F.3d 204, 206-07 (2d Cir. 2007); accord
Gall, 552 U.S. at 53. If the district court is found to have committed no procedural errors, “the
appellate court should then consider the substantive reasonableness of the sentence imposed,”
which includes looking to the “totality of the circumstances.” Gall, 552 U.S. at 51.

        A sentencing court’s legal application of the Guidelines is reviewed de novo, while the
court’s underlying factual findings with respect to sentencing established by a “preponderance of

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the evidence,” are reviewed for clear error. See United States v. Gaskin, 364 F.3d 438, 464 (2d
Cir. 2004); see also 18 U.S.C. § 3742(e). In deciding upon a sentence, a district court has the
discretion to rely on the wide array of facts before it, including information set forth in the pre-
sentence report, as well as evidence that would not be admissible at trial, so long as the defendant
is given an opportunity to contest the accuracy of that information. See United States v.
Rodriguez-Gonzalez, 899 F.2d 177, 182 (2d Cir. 1990), cert. denied, 498 U.S. 844 (1990);
United States v. Romano, 825 F.2d 725, 728-29 (2d Cir. 1987).

          Here, Ryan asserts only that the sentence was substantively unreasonable. Substantive
reasonableness is reviewed “under a deferential abuse-of-discretion standard.” United States v.
Cavera, 550 F.3d 180, 189 (2d Cir. 2008) (en banc) (internal quotation marks omitted). “We will
. . . set aside a district court’s substantive determination only in exceptional cases where the trial
court’s decision ‘cannot be located within the range of permissible decisions.’” Id. (quoting
United States v. Rigas, 490 F.3d 208, 238 (2d Cir. 2007)). Determining substantive
reasonableness involves consideration of the totality of the circumstances. See Gall, 552 U.S. at
51. Even if a sentence is within the Guidelines range, “we do not presume that such sentences
are reasonable when we review them substantively;” rather, the relevant inquiry “is determined . .
. by the district court’s individualized application of the statutory [§ 3553(a)] sentencing factors.”
Dorvee, 616 F.3d at 183-84. Nevertheless, “in the overwhelming majority of cases, a Guidelines
sentence will fall comfortably within the broad range of sentences that would be reasonable in
the particular circumstances.” United States v. Fernandez, 443 F.3d 19, 27 (2d Cir. 2006). A
finding of substantive unreasonableness is similar to the review we grant a motion for a new
criminal trial in determining whether a jury’s verdict was “manifestly unjust,” or the finding of
an intentional tort by state actors in whether it “shocks-the-conscience.” See Rigas, 583 F.3d at
122-23.

       Ryan’s sentence of roughly seven and a half years is not substantively unreasonable. The
judge was particularly conscientious in considering the § 3553(a) factors and after a lengthy
discussion of the defendant and his offense, he decided to decrease the total offense level by five.
While we do not rely on the fact that the sentence was within the Guidelines in deciding it was
reasonable, it is nevertheless relevant to the analysis that the sentence is below the within-
Guidelines sentence for a total offense level of 34, and on the lower end of the lowered
Guidelines range for the offense level of 29.

        Ryan relies on Dorvee, in order to urge us to deem his sentence substantively
unreasonable. Dorvee held that a sentence of 240 months for a first time offender who pleaded
guilty to distribution of pornography was procedurally and substantively unreasonable. 616 F.3d
at 182, 188. With respect to its substantive ruling, the court held that even if the sentence was a
within-Guidelines sentence, the sentence imposed was unreasonable. Id. at 183. The court in
Dorvee explained that it was troubled by the lower court’s apparent assumption that defendant
would actually sexually assault a child, even though his offense involved only viewing and
distributing child pornography; it noted that the district court provided no rationale for why the
maximum sentence of incarceration was chosen by the court in violation of the parsimony clause;
and the court assumed the statutory maximum sentence would have been upheld on appeal. Id. at
183-84. Moreover, we noted that the district court errors were committed within the context of a
procedurally erroneous sentencing Guidelines range. Id. at 184.

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        The case before us is distinguishable in many ways. We are faced with a sentence which
is nowhere near the statutory maximum, and is actually nearer the five-year statutory minimum.
While that consideration alone does not end the analysis, the district court also underwent a
detailed explanation of Ryan’s offense in considering the type of pictures viewed, the extent of
the crime committed, and the impact on the children who were victimized in the making of some
of the pictures; it also considered Ryan’s age and medical conditions, and his contributions to his
family, his friends, and society at large. Moreover, the court nowhere exhibited a mistaken
assumption that Ryan was at risk of actually engaging in the sexual assault of a child as the court
in Dorvee had discussed. In fact, one of the witnesses the court heard was a psychologist, who
explained at length the difference between hands-on and hands-off child pornography offenses,
with Ryan being the latter. Finally, the court below was not working under a mistaken
Guidelines range. Accordingly, Dorvee does not provide Ryan’s argument that his sentence is
substantively unreasonable much support.

      We have considered Ryan’s remaining contentions and find them to be without merit.
Accordingly, the judgment of the district court hereby is AFFIRMED.


                                                     FOR THE COURT:
                                                     Catherine O’Hagan Wolfe, Clerk




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