NOT PRECEDENTIAL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.
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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
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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.
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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
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(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
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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
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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
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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.
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