United States v. DeSilva

09-2988-cr
United States v. DeSilva

UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

August Term 2009

(Argued June 23, 2010 Decided July 28, 2010)

Docket No. 09-2988-cr

UNITED STATES OF AMERICA ,

Appellant,

v.

CHAD EDWARD DE SILVA,

Defendant-Appellee.

Before WINTER, CABRANES, and WESLEY, Circuit Judges.

The government brings this appeal of a sentence imposed by a June 10, 2009 judgment of

conviction entered in the United States District Court for the Western District of New York. We

hold that the District Court committed procedural error by engaging in clearly erroneous fact-

finding at defendant’s sentencing when it relied upon a psychologist’s report—which was prepared

for use at a pretrial bail hearing—to find that defendant, an admitted child molester, posed no

danger to the community.

Vacated and remanded.

JOSEPH J. KARASZEWSKI, Assistant United States Attorney
(Kathleen M. Mehltretter, United States Attorney, on the brief),
Office of the United States Attorney for the Western District
of New York, Buffalo, New York, for appellant.

SEAN DENNIS HILL, Buffalo, New York, for appellee.

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PER CURIAM :

We are called upon here to determine whether the United States District Court for the

Western District of New York committed procedural error by engaging in clearly erroneous fact-

finding at defendant’s sentencing when it relied upon a psychologist’s report—which was prepared

for use at a pretrial bail hearing—to find that defendant, an admitted child molester, posed no

danger to the community. We hold that the District Court did commit such procedural error and

therefore remand for resentencing.

BACKGROUND

In September 2006, defendant-appellee Chad Edward DeSilva traded child pornography on

the internet with a Task Force Agent of the Federal Bureau of Investigation. After obtaining a

warrant, federal investigators searched DeSilva’s Buffalo home and found a computer hard drive

containing pictures of naked prepubescent boys engaging in sex acts. DeSilva admitted to the

investigators that the pictures were his; he had obtained them, he said, on the internet.

DeSilva then came under the scrutiny of two local police departments. After an

investigation, DeSilva admitted to local detectives that he had sexually abused a friend’s son over a

period of two years. DeSilva explained that he had often “babysat” the boy—who was, when the

abuse began, approximately eleven years old—and in that position of trust, he had repeatedly

exposed the boy to pornography and encouraged the boy to masturbate with him. Eventually,

DeSilva admitted, the abuse escalated: he touched the boy’s penis, manually stimulated him, and

performed oral sex on him.

DeSilva was taken into custody by federal officials and later indicted on federal child

pornography charges. DeSilva requested release on bail pending trial and, in support of that request,

submitted a report of a psychologist he had hired, Dr. Brian S. Joseph (“Dr. Joseph”). In his report,

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Dr. Joseph acknowledged that DeSilva had “clearly demonstrated interest in Pedophilic sexual

stimulation,” but he observed that DeSilva had “expressed what seemed to [him] to be genuine

remorse at th[at] time.” J.A. 95. Dr. Joseph argued that DeSilva should be released to his parents

pending trial. He reasoned as follows:

I feel that if [DeSilva] were to be released to his parents, he would not
present a danger to the community. Not only because he states emphatically
that he would resist such impulses to do so [(i.e., to engage in “Pedophilic
sexual stimulation”)], but he would have little opportunity to do [so] and
would be closely monitored by his parents, as well. It is important to note
that he did not molest anyone else, save the neighbor’s son, i.e. he did not go
into the community to select victims at random, or others in his family or
broader sphere of acquaintances who might serve as targets.

In addition, the parents have assured me that the computers have
been removed from the home and they have no Internet access. Again, his
family is more than willing to be involved and provide careful supervision.
Of course, while I only have his own pledges that he would refrain from any
further illegal activity, he seemed earnest and forthright in that regard.

Again, I feel that he is well motivated and he, himself, is interested to
enter counseling at the first opportunity. He seems to have developed clearer
self-awareness that child pornography involves victimization and exploitation
of children, and that his sexual gratification is obviously a secondary issue.
Thus, again, I do not feel that he poses a danger to the community at large
and at this point in time, a release to his parents’ custody is a reasonable
alternative to continued incarceration.

J.A. 95-96. As to a possible sentence for DeSilva, Dr. Joseph expressed only “hope[]” that “the Court

would view” the information in his report “in a positive light as [the Court] consider[ed] sentencing

alternatives.” Id. at 96. DeSilva was not granted pre-trial release.1

1
The government informs us—and DeSilva does not dispute—that DeSilva’s bail request
was adjudicated in the following manner:

The district court granted the government’s detention motion at the time of
DeSilva’s initial appearance on the criminal complaint. DeSilva thereafter
moved for reconsideration, which motion was fully briefed and argued
before the magistrate judge. The magistrate judge reserved decision on July
6, 2007, but apparently never decided the motion.

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 DeSilva eventually pleaded guilty under a plea agreement with the government to one count

of distributing child pornography. See 18 U.S.C. § 2252(a)(2). The plea agreement provided that

DeSilva’s offense level under the United States Sentencing Guidelines (U.S.S.G.) would be 38. That

calculation included a five-level enhancement based on DeSilva’s ongoing sexual abuse of his

friend’s son. See U.S.S.G. § 2G2.2(b)(5) (“If the defendant engaged in a pattern of activity involving

the sexual abuse . . . of a minor, increase [the offense level] by 5 levels.”). Placing DeSilva within

criminal history level I, the plea agreement concluded that his advisory sentence range would be 235

to 240 months’ imprisonment.2

At sentencing, DeSilva’s counsel argued for a sentence “at, or slightly in excess of,” the

statutory minimum, 60 months. See 18 U.S.C. § 2252(b)(1). He submitted several letters written in

support of DeSilva, and he once again submitted the report of Dr. Joseph that had been prepared in

support of the request for pre-trial release. The government argued for a sentence within the

advisory Guidelines range, and written victim impact statements were submitted by DeSilva’s minor

victim, members of the victim’s family, and a psychologist who had treated the victim. The victim

stated poignantly: “I don’t want what happened to me to ever happen to anyone else.”

Appellant’s Br. 5 n.2 (citations omitted). We are troubled by the suggestion that the magistrate judge
failed to decide DeSilva’s request for pretrial release, as a court should act expeditiously in ruling on
requests that involve a defendant’s liberty. That fact, however, does not affect the merits of this
appeal. DeSilva does not appeal the denial of pre-trail release; this appeal is brought by the
government, and no cross-appeal has been filed by DeSilva. Thus we are called upon here to review
only the District Court’s sentencing of DeSilva.
2
The top of the advisory Guidelines range, 240 months, represented the statutory maximum
term of imprisonment. See 18 U.S.C. § 2252(b)(1) (providing that the statutory maximum is “20
years”); U.S.S.G. § 5G1.1(c) (providing that a sentence may not be imposed that is “greater than the
statutorily authorized maximum sentence”); id. § 5G1.1 cmt. (“For example, . . . [i]f the applicable
guideline range is 51-63 months and the maximum sentence authorized by statute for the offense of
conviction is 60 months, the guideline range is restricted to 51-60 months under subsection (c).”).

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 The District Court first calculated the advisory Guidelines range as provided in the plea

agreement: an offense level of 38 and a criminal history category of I, resulting in a range of 235 to

240 months’ imprisonment. The Court then explained that it had decided to impose a below-

Guidelines sentence. It listed several reasons for its decision to deviate from the Guidelines; one of

those reasons was “Dr. Joseph’s opinion that you [(i.e., DeSilva)] are not a danger to the

community.” See J.A. 168-69. The Court’s written statement of reasons provided as follows

(emphasis added):

The Court rendered a full decision from the bench. In sum and substance,
the Court considered that although defendant’s sentencing colloquy was
more of an apology to his family and friends than an acknowledgment of the
harm he caused, his past abuse [(i.e., the abuse that DeSilva had suffered in
the past)], lack of prior criminal record, employment history, support from
family and friends, and Dr. Joseph’s opinion that the defendant is not a danger to the
community supports the downward variance to a reasonable sentence.

The Court imposed a sentence of 132 months’ imprisonment and a lifetime term of supervised

release.

The government, acting with the approval of the Solicitor General of the United States,

brought this timely appeal.3

3
See 18 U.S.C. § 3742(b)(3) (“The Government may file a notice of appeal in the district
court for review of an otherwise final sentence if the sentence . . . is less than the sentence specified
in the applicable guideline range to the extent that the sentence includes a lesser . . . term of
imprisonment . . . than the minimum established in the guideline range . . . .”); id. § 3742(b) (“The
Government may not further prosecute such appeal without the personal approval of the Attorney
General, the Solicitor General, or a deputy solicitor general designated by the Solicitor General.”)

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 DISCUSSION

We review a criminal sentence for “‘unreasonableness,’” which means that we apply a

“deferential abuse-of-discretion standard.” United States v. Cavera, 550 F.3d 180, 187, 189 (2d Cir.

2008) (en banc) (quoting United States v. Booker, 543 U.S. 220, 245 (2005)); Gall v. United States, 552 U.S.

38, 40 (2007)). “Our review has two components: procedural review and substantive review.”

Dorvee, 604 F.3d at 90 (citing Cavera, 550 F.3d at 189). “‘Procedural error’” includes, among other

things, “‘selecting a sentence based on clearly erroneous facts.’” Id. (quoting Gall, 552 U.S. at 51).

To hold that a factual finding is “clearly erroneous,” we must be “‘left with the definite and firm

conviction that a mistake has been committed.’” Cavera, 550 F.3d at 204 (quoting Anderson v. City of

Bessemer City, 470 U.S. 564, 574 (1985)).

Federal criminal sentences are also subject to review for substantive reasonableness.

Although substantive reasonableness is judged under the same deferential abuse-of-discretion

standard, we have recently cautioned that “the ‘eccentric’ child pornography Guidelines, with their

‘highly unusual provenance,’ ‘can easily generate unreasonable results’ if they are not ‘carefully

applied.’” United States v. Tutty, ___ F.3d ___, No. 09-2705-cr, 2010 WL 2794601, at *5 (2d Cir. July

16, 2010) (quoting Dorvee, 604 F.3d at 95).

The government contends that the District Court committed clear error when it relied on

Dr. Joseph’s report to find that DeSilva was “not a danger to the community.” J.A. 168. The

report, the government argues, dealt only with whether DeSilva would be a danger to the

community if he were to be released to his parents pending trial. See Appellant’s Br. 17. In the

government’s view, therefore, the District Court’s reliance on Dr. Joseph’s report “was clearly

erroneous insofar as it entirely removed Dr. Joseph’s opinion from the context in which it was

rendered.” Id.

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 We agree.

Although a psychologist’s report may provide mitigating evidence for the court’s

consideration during sentencing, the court must still conduct an independent evaluation of the

defendant in light of the factors set forth in 18 U.S.C. § 3553(a). If the psychologist’s report cannot

be squared with the court’s own judgment of the defendant’s culpability and the danger he poses to

society, the court is free, in its discretion, to decline to rely on the psychologist’s findings, so long as

the court explains its basis for doing so.

Nothing in Dorvee is to the contrary. There, as part of our consideration of a sentence’s

substantive reasonableness, we observed that the district court placed more emphasis on 18 U.S.C.

§ 3553(a)(2)(C)4 as an aggravating factor than the sentencing record could support. See Dorvee, 604

F.3d at 94. Specifically, the district court in Dorvee based the defendant’s sentence, at least in part, on

the “assumption” that the defendant posed a danger to the community merely because he had

committed a child-pornography offense. Id. In relying on that “assumption”—which, we found,

lacked record support—the district court also ignored, without explanation, a psychologist’s report

that tended to suggest that there was not a great need “to protect the public from further crimes of

the defendant.” 18 U.S.C. § 3553(a)(2)(C). The fact that the record as a whole could not sustain the

district court’s application of § 3553(a)(2)(C) supported our ultimate conclusion that the sentence

was not substantively reasonable. See Dorvee, 604 F.3d at 94. We did not, however, suggest that a

district court must, without scrutiny, adopt a psychologist’s conclusion that a particular defendant

poses no danger to the community.

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This subsection provides in relevant part: “The court, in determining the particular
sentence to be imposed, shall consider . . . the need for the sentence imposed . . . to protect the
public from further crimes of the defendant . . . .” 18 U.S.C. § 3553(a)(2)(C).

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 In short, nothing in Dorvee compels a district court to accept a psychologist’s conclusions at

face value. It is possible, of course, that such a psychologist’s report may be accurate. But district

courts should scrutinize such reports with the same diligence required during any fact-finding at

sentencing, especially if the report’s conclusion is at odds with the defendant’s conduct.

Here, unlike the report in Dorvee, Dr. Joseph’s report focused on whether DeSilva could be

released on bail to his parents pending trial. Each time Dr. Joseph opined that DeSilva was not a

danger to the community, the opinion was conditioned on the premise that DeSilva would be

released to his parents. See J.A. 95 (“I feel that if [DeSilva] were to be released to his parents, he would not

present a danger to the community.” (emphasis added)); id. at 96 (“I do not feel that he poses a

danger to the community at large and at this point in time, a release to his parents’ custody is a reasonable

alternative to continued incarceration.” (emphasis added)). Indeed, in concluding that DeSilva was unlikely

to molest another boy, Dr. Joseph reasoned that “he would have little opportunity to do [so]”

because he “would be closely monitored by his parents.” J.A. 95; see also id. at 96 (“In addition the

parents have assured me that the computers have been removed from the home and they have no

Internet access. Again, his family is more than willing to be involved and provide careful

supervision.”).

As a result, we are “‘left with the definite and firm conviction’” that the District Court made

a “‘mistake’” in relying on Dr. Joseph’s report at sentencing to conclude that DeSilva posed no

threat to the community. Cavera, 550 F.3d at 204 (quoting Anderson, 470 U.S. at 574). Dr. Joseph’s

report dealt only with whether DeSilva would be a danger to the community if released to his

parents pending trial. What was relevant for sentencing, however, was whether DeSilva would pose a

danger to society once he had served his sentence and was released from prison. No one suggests

that the District Court could have ordered that DeSilva be released to his parents following his term

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of imprisonment, and thus Dr. Joseph’s opinion had only minimal relevance to whether DeSilva

would be likely to abuse another boy after his sentence was complete. As such, the report should

have had little bearing on the District Court’s sentencing determination; it was not, in any event, an

appropriate authority for the Court’s finding that DeSilva posed no “danger to the community.” See

J.A. 168-69. In relying on Dr. Joseph’s report, therefore, the District Court “‘select[ed] a sentence

based on [a] clearly erroneous fact[]” and thereby committed “‘procedural error.’” Dorvee, 604 F.3d

at 90 (quoting Gall, 552 U.S. at 51).

We accordingly vacate the sentence imposed by the District Court and remand for

resentencing so that the Court can “correct its mistake.” Cavera, 550 F.3d at 190; see also Tutty, 2010

WL 2794601, at *3. We are, of course, empowered to address “both the procedural and substantive

reasonableness of [a] sentence in the course of an appeal where we find both types of error.” Dorvee,

604 F.3d at 93. Here, however, the government has not challenged the substantive reasonableness

of DeSilva’s sentence, and thus we decline to decide whether the sentence imposed was

substantively reasonable. That is, we intimate no view as to whether a 132-month sentence in this

case was “manifestly unjust[,] . . . shockingly high, shockingly low, or otherwise unsupportable as a

matter of law.” United States v. Rigas, 583 F.3d 108, 123 (2d Cir. 2009); accord Dorvee, 604 F.3d at 94.

We hold only that the procedure used to arrive at that sentence was erroneous, and a new full

sentencing hearing is required for the District Court to “exercise its discretion anew.” Cavera, 550

F.3d at 190.

CONCLUSION

For the reasons set forth above, we hold that the District Court committed procedural error

by engaging in clearly erroneous fact-finding at defendant’s sentencing when it relied upon Dr.

Joseph’s report to conclude that DeSilva posed no danger to the community. We therefore

VACATE the sentence imposed and REMAND the cause to the District Court for resentencing.

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