507 F. App'x 42
2d Cir.2013Background
- Ketcham pled guilty to long-term collecting, possessing, and distributing child pornography.
- District Court sentenced Ketcham on Nov 21, 2011 to 60 years’ imprisonment plus life supervised release.
- Ketcham argues the Guidelines were miscalculated by not applying §5G1.2(d), yielding a lifetime vs 90-year sentence.
- The court used a total Guideline calculation and considered presentence reports and relevant factors.
- Ketcham was 37 years old at the time of sentencing, which affects the prejudice analysis.
- Appellate review is for procedural unreasonableness and substantive reasonableness under an abuse-of-discretion standard.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Plain-error in guideline calculation | Ketcham argues failure to apply §5G1.2(d). | District court error cannot prejudice outcome. | No plain error; no prejudice; sentence affirmed. |
| Substantive reasonableness of the sentence | Sentence excessively punitive given factors. | District court appropriately weighed factors. | Sentence not substantively unreasonable. |
| Consideration of state-court sentence | Court failed to reflect anticipated state sentence. | Court presumed to have considered it; no record contrary. | No demonstrated omission affecting reasonableness. |
| Reliance on PSR facts | Facts not admitted or proven beyond a reasonable doubt were relied on. | District court may rely on PSR; defendant waived objections. | Not an abuse; proper use of PSR findings. |
Key Cases Cited
- Gall v. United States, 552 U.S. 38 (U.S. 2007) (abuse-of-discretion review requires procedural and substantive checks)
- United States v. Wagner-Dano, 679 F.3d 83 (2d Cir. 2012) (plain-error review for sentencing guidelines)
- United States v. Marcus, 130 S. Ct. 2159 (S. Ct. 2010) (plain-error standard requires prejudice to be shown)
- United States v. Verkhoglyad, 516 F.3d 122 (2d Cir. 2008) (presumption of considering statutory factors at sentencing)
- United States v. Jass, 569 F.3d 47 (2d Cir. 2009) (waiver of objections to presentence facts)
- United States v. Vaughn, 430 F.3d 518 (2d Cir. 2005) (sentencing factors may be determined by preponderance of the evidence)
- United States v. Cavera, 550 F.3d 180 (2d Cir. 2008) (totality-of-the-circumstances test for substantive reasonableness)
- United States v. Rigas, 583 F.3d 108 (2d Cir. 2009) (backstop for substantive reasonableness review)