United States v. Cossey
2011 U.S. App. LEXIS 1756
| 2d Cir. | 2011Background
- Cossey was charged with two counts of possession of child pornography; he pled guilty to Count One under a Plea Agreement.
- The Plea Agreement reserved Cossey’s right to appeal any sentence greater than fifty-seven months.
- On December 3, 2009, the district court sentenced Cossey to 78 months' imprisonment with life supervised release and a $100 assessment.
- Two pre-sentencing psychological evaluations concluded Cossey was low to moderate risk to re-offend, which the court rejected.
- The court based part of its reasoning on a theory that Cossey’s genetic makeup would inevitably lead to re-offending, rather than on record-supported evidence.
- The government argued Cossey’s continued viewing of child pornography after an FBI investigation supported a high risk of re-offending; the court did not rely on this as the sole basis.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether relying on genetic predisposition constitutes error in sentencing | Cossey contends the court erred by basing punishment on an unsupported genetic claim. | The government contends consideration of risk factors, including propensity to re-offend, is proper. | Plain error; remand for resentencing before a different judge. |
| Whether remand to a different judge was required | Cossey seeks appropriate resentencing by a different judge only if necessary to ensure fairness. | The government argues any resentencing could be before the same judge if appropriate. | Remanded to a different judge for resentencing. |
Key Cases Cited
- United States v. Dorvee, 616 F.3d 174 (2d Cir.2010) (court cautions against basing sentence on unsupported scientific theories)
- United States v. Juwa, 508 F.3d 694 (2d Cir.2007) (remand when basis of sentence is unclear or unsubstantiated by record)
- United States v. DeSilva, 613 F.3d 352 (2d Cir.2010) (courts may reject psychologist findings if not square with culpability and danger)
- Gall v. United States, 552 U.S. 38 (Sup. Ct. 2007) (reasonableness review governs sentencing, with procedural and substantive components)
- United States v. Fernandez, 443 F.3d 19 (2d Cir.2006) (strong presumption that sentencing judge considered properly presented arguments)
- United States v. Crosby, 397 F.3d 103 (2d Cir.2005) (guidelines factors and §3553(a) considerations; not all need explicit mention)
- United States v. Villafuerte, 502 F.3d 204 (2d Cir.2007) (plain-error review when sentencing objection not raised at sentencing)