United States v. Cossey

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.

1
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

2
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

3
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

4
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