UNITED STATES OF AMERICA v. CONOR BRIAN FITZPATRICK
No. 24-4102
United States Court of Appeals for the Fourth Circuit
January 21, 2025
PUBLISHED
Argued: October 29, 2024
Decided: January 21, 2025
Before NIEMEYER, RUSHING, and HEYTENS, Circuit Judges.
Vacated and remanded by published opinion. Judge Niemeyer wrote the opinion, in which Judge Rushing and Judge Heytens joined.
ARGUED: Joseph Attias, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellant. Andrew James Frisch, LAW OFFICES OF ANDREW J. FRISCH, PLLC, New York, New York, for Appellee. ON BRIEF: Aarash A. Haghighat, Senior Counsel, Computer Crime and Intellectual Property Section, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; Jessica D. Aber, United States Attorney, Richmоnd, Virginia, Jacqueline R. Bechara, Assistant United States Attorney, Lauren Pomerantz Halper, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellant. Peter Neil Katz, LAW OFFICES OF PETER KATZ, LLC, Princeton, New Jersey, for Appellee.
Conor Fitzpatrick pleaded guilty to conspiracy to traffic in stolen personally identifying information with intent to defraud, in violation of
At sentencing, the district court calculated Fitzpatrick‘s advisory Guidelines sentencing range to be 188 to 235 months’ imprisonment. But based on Fitzpatrick‘s autism spectrum disorder and youth (21 years old at the time of sentencing), it sentenced Fitzpatrick to a 17-dаy time-served term of imprisonment, concluding that the Federal Bureau of Prisons would not be able to treat Fitzpatrick‘s autism spectrum disorder and that he would be “ravaged” in prison.
On appeal, the government contends that the district court abused its discretion by imposing a substantively unreasonable sentence. We agree. Accordingly, we vacate the sentence and remand for resentencing.
I
In March 2022, Fitzpatrick created an online marketplace called “BreachForums” for the purchase and sale of personally identifying information that had been stolen by
Fitzpatrick was indicted in three counts for violating
Beginning immediately after his plea hearing and release and continuing thereafter for approximately three months, Fitzpatrick violated the conditions of his release by participating in various “Discord” chatrooms. He accessed these chatrooms by acquiring a new iPhone and using a VPN to connect to the Internet to evade detection. During his chatroom conversations, Fitzpatrick professed innocence to the very crimes to which he had pleaded guilty, stating that his plea deal was “so BS” and that he had “wanted to fight it.” He also joked with his friends about selling data to foreign governments, exhorting one user to “become a foreign asset to china or russia” and to “sell government secrets.” The chatroom participants also discussed hacking various targets.
Following the discоvery of these violations of his conditions for release, Fitzpatrick was detained pending sentencing for what turned out to be 17 days.
In preparation for sentencing, Fitzpatrick obtained psychological and psychosexual evaluations from professional psychologists. Dr. Jill Belchic-Schwartz, a pediatric psychologist, conducted tests that revealed Fitzpatrick had average general cognitive functioning but manifested deficiencies in interpersonal skills, perspective-taking, and social interests. For example, Dr. Belchic-Schwartz observed that Fitzpatrick lacked friends outside of a small online community and spent most of his free time alone in his room with his computer. She concluded that Fitzpatrick scored within the “autism” range on a diagnostic measure and thus diagnosed him with autism spectrum disorder. Otherwise, she observed that Fitzpatrick‘s thoughts were logical and coherent. His insight
Dr. Sara Liebert, a clinical psychologist, evaluated Fitzpatrick‘s likelihood of committing another sex-related offense. She administered an inventory to assess Fitzpatrick‘s likelihood of recidivism and determine specific treatment needs. She concluded that Fitzpatrick‘s need for sex-related treatment was moderate and that he had a 4.5 percent likelihood of committing another sex-based crime. She cited “mounting evidence” that those who sexually offend as youths do not reoffend as adults and that those convicted of child pornography do not reoffend. She saw no reason why Fitzpatrick would be an outlier to those norms. At bottom, she recommended that Fitzpatrick participate in sex-offense-specific therapy.
At sentencing, Fitzpatrick‘s counsel presented these two psychologists’ reports to the district court and argued vigorously for a variant sentence for time served based on Fitzpatrick‘s autism diagnosis and other personal characteristics. While the district court initially sеemed dubious about counsel‘s arguments, it increasingly became concerned about Fitzpatrick‘s condition and the ability of the Bureau of Prisons to manage and treat him. Following Fitzpatrick‘s allocution, it commented, “This is among the most difficult cases I‘ve seen in quite a while in terms of sentencing, because the interplay between the criminal justice system and the obvious extremely significant mental health issues that this young man has are really very concerning. . . . My сoncern is [imprisoning in the general
After making those preliminary observations, the court sentenced Fitzpatrick as follows:
In this case, the defendant has been in custody for two weeks, and he has survived that, but only because he‘s in a local jail and he‘s in a mental health unit. He‘s not in general population. This young man in general population I think would just be a disaster.
And so, although the court fully recognizes the seriousness of this criminal conduct, I am going to sentence the defendant to a sentenсe of time served [17 days], followed by a period of 20 years of supervised release.
After explaining other terms and conditions of the sentence, the court explained:
I think this gives us the best opportunity to try to protect the community as well as to not see this young man just ravaged in a prison setting where he would never get the mental health treatment that he needs, and he would, again, be, I think, exposed to all kinds of problems. He would clearly be a potential victim.
So that is why I‘m imposing such an extensively variant sentence.
From the district court‘s judgment dated January 19, 2024, the government filed this appeal, contending that the district court abused its discretion in sentencing Fitzpatrick to a 17-day time-served sentence.
The question presented in this case is whether Fitzpatrick‘s 17-day sentence was substantively unreasonable.
In sentencing Fitzpatrick, the district court properly calculated his Guidelines sentencing range tо be 188 to 235 months’ imprisonment. But after considering Fitzpatrick‘s history and personal characteristics, including his autism and youth, the court imposed a time-served sentence of 17 days’ imprisonment. It explained that Fitzpatrick (1) would be “a potential victim” in prison and (2) would not have access to adequate treatment.
The government contends that Fitzpatrick‘s 17-day imprisonment was substantively unreasonable and therefore that the district court abused its discretion in imposing that sentence. It notes that the court relied exclusively on Fitzpatrick‘s personal characteristics and ignored the need for his sentence to reflect the seriousness of his offense, to promote respect for the law, to deter similar wrongdoing, and to protect the public. The government also challenges the district court‘s sweeping conclusion that the Federal Bureau of Prisons categorically could not manage, much less treat, someone with Fitzpatrick‘s characteristics. It argues that this case is governed by our decision in United States v. Zuk, 874 F.3d 398 (4th Cir. 2017), where we concluded that a major downward variant sentence based on similar personal characteristics was substantively unreasonable.
To defend the district court‘s sentence, Fitzpatrick‘s counsel focuses on Fitzpatrick‘s mental health struggles, arguing that his condition greatly undermined his culpability for his offenses. Counsel posits that the “cause” of Fitzpatrick‘s criminal
The principles of sentencing are well established. A defendant found guilty of an offense must be sentenced in accordance with
sufficient, but not greater than necessary . . . (A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; (B) to afford adequate deterrence to criminal conduct; (C) to protect the public from further crimes of the defendant; and (D) to provide the defendant with needed education or vocational training, medical care, or other correctional treatment in the most effective manner.
In reviewing а sentence for substantive reasonableness, we independently “examine the totality of the circumstances to see whether the sentencing court abused its discretion in concluding that the sentence it chose satisfied the standards set forth in § 3553(a).” United States v. Abed, 3 F.4th 104, 119 (4th Cir. 2021) (cleaned up); accord Gall v. United States, 552 U.S. 38, 51 (2007).
When selecting Fitzpatrick‘s sentence, the district court relied only on his history and personal characteristics — his autism and youth — even though it acknowledged in passing the seriousness of his crimes. The court alsо mentioned briefly the need to protect the public when it imposed a 20-year term of supervised release, stating that such supervised release would “give[] us the best opportunity to try to protect the community.” (Emphasis added). But it never explained why supervised release was adequate, especially in light of Fitzpatrick‘s repeated violations of his conditions of presentence release. And, most glaringly, the court never addressed, as required, how his sentence “achieve[s]” respect for the law, punishment, deterrence, and incapacitation, all of which are core purposes of sentencing.
First, as to whether the sentence was sufficient “to reflect the seriousness of the offense,”
Second, the court failed to account for the need for its sentence to promote respect for the law and ensure just punishment for the offense. The Sentencing Guidelines advise that the just punishment for Fitzpatrick‘s offenses would be 188 to 235 months’ imprisonment, yet the court varied downward by more than 99% and imposed a 17-day term of imprisonment. This sentence was even below what Fitzpatrick‘s friends on the Internet in chats after his guilty plea had jokingly expected that he would receive — “ur gonna get like a month.” Moreover, the court does not appear to have considered how such an extreme variance might contribute to unwarrantеd sentencing disparities.
Fourth and finally, the district court concluded that Fitzpatrick‘s term of supervised release would “protect the public from further crimes of the defendant,”
Instead of addressing these required sentencing factors, the district court focused almost exclusively on Fitzpatrick‘s personal history and characteristics. But even as to that factor, the court failed to identify any evidence to support its sweeping conclusion that the Federal Bureau of Prisons could not manage Fitzpatrick given his mental condition. When pressed at oral argument about the lack of record evidence that could support the court‘s claim, Fitzpatrick‘s counsel stated that the Bureau of Prisons’ inability to treat inmates “wasn‘t addressed on the record” but had “certainly been addressed in the public forum,” submitting that it was “common knowledge” that the Bureau of Prisons is an “agency in crisis even as to dealing with mentally sound inmates.” The government properly responds, however, that such “common knowledge” is not supported by the record and that the Bureau of Prisons houses and treats mentally ill inmates all the time.
This case is substantially similar to and indeed governed by our decision in United States v. Zuk. In Zuk, we concluded that arguments nearly identical to those pressed by Fitzpatrick here did not justify a major downward variance given all the circumstances presented in that case. Zuk, who at sentencing was 22 and diagnosed with autism, pleaded guilty to possession of child pornography. 874 F.3d at 400. The undisputed evidence showed that he had possessed nearly 14,000 images and had “communicated on a daily basis with a 16-year-old who was sexually abusing his 5-year-old cousin,” id. at 400, and that he directed the 16-year-old “to produce specific sadistic images” of his abuse, id. at 411. During the sentencing hearing, the district court heard expеrt testimony that Zuk was unlikely to recidivate if he received proper treatment. Id. at 403. Although another expert opined that Zuk‘s autism had contributed to the offense, there was no evidence that it had caused his criminal conduct. Id. at 404, 411. Zuk urged the court to take into account the fact that he had autism and that his brain was not fully developed at the time he committed his offense. Id. at 403. Zuk also emphasized that he was twice assaulted in prison while awaiting sentencing and would only be further victimized if sentenced to a lengthy term of incarceration. Id. at 402, 408. The district court, relying almost exclusively on Zuk‘s autism, varied downward from a Guidelines sentence of 240 months’ imprisonment to a time-served sentence of 26 months. Id. at 406.
- how his autism spectrum disorder mitigated his culpability for his conduct and affected his treatment needs;
- the importance of Zuk‘s receiving intensive sex-offender treatment in a therapeutic community . . . while his brain was still developing; and
- his vulnerability in prison due to his autism spectrum disorder and slight frame.
Zuk, 874 F.3d at 408. We disagreed and vacated the district court‘s sentence as substantively unreasonable, explaining that the time-served sentence “fail[ed] in a message of deterrence, d[id] not adequately protect the public, and undoubtedly d[id] not promote respect for the law.” Id. at 411. We concluded that “when a district court focuses so heavily on a single sentencing purpose only tangentially connected to a defendant‘s grave criminal misconduct, it risks abusing its discretion.” Id. at 410.
Just as in Zuk where no expert testified that Zuk‘s medical condition caused his criminal conduct, no expert testified in this case that Fitzpatrick‘s condition caused his criminal misconduct. At most, Dr. Belchic-Schwartz stated that Fitzpatrick faced “substantial difficulty resisting impulses and considering consequences before acting.” That statement, however, does not suggest that Fitzpatrick‘s autism caused his crimes, nor, for that matter, does it distinguish him from most people who commit crimes. Likewise, the record here does not support Fitzpatrick‘s assertion that he could not “truly understand[] the consequences of [his] acts.” Indeed, the record contradicts that position. Fitzpatrick‘s
We noted in Zuk that a district court risks abusing its discretion when it grants a defendant‘s request for a major downward variance based almost exclusively upon the defendant‘s personal history and characteristics. See 874 F.3d at 410. Here, we conclude that the district court‘s reliance on only Fitzpatrick‘s personal history and characteristics constituted just such an abuse of discretion. The district court failed to impose a sentence that accounted for the severity of Fitzpatrick‘s offenses, the need to punish and provide respect for the law, the need to adequately deter criminal conduct, and the need to protect the public from further crimes. Simply put, a 17-day sentence does not fulfill those required sentencing purposes and therefore was substantively unreasonable.
Accordingly, we vacate Fitzpatrick‘s sentence and remand for resentencing in accordance with the principles set forth herein.
VACATED AND REMANDED