UNITED STATES OF AMERICA, Appellee, v. SARAH R. GATES, Defendant-Appellant.
No. 21-2134
United States Court of Appeals For the Second Circuit
October 17, 2023
August Term 2022
Argued: December 9, 2022
Before: CARNEY, SULLIVAN, Circuit Judges, and LIMAN, District Judge.*
Sarah R. Gates challenges the procedural and substantive reasonableness of the forty-five-year sentence imposed by the district court (McAvoy, J.) following her guilty plea to one count of conspiracy to sexually exploit a child, in violation of
AFFIRMED.
MATTHEW W. BRISSENDEN, Matthew W. Brissenden, P.C., Garden City, NY, for Defendant-Appellant.
PAUL D. SILVER, Assistant United States Attorney, for Carla B. Freedman, United States Attorney for the Northern District of New York, Albany, NY, for Appellee.
RICHARD J. SULLIVAN, Circuit Judge:
Sarah R. Gates challenges the procedural and substantive reasonableness of the forty-five-year sentence imposed by the district court (McAvoy, J.) following her guilty plea to one count of conspiracy to sexually exploit a child, in violation of
I. BACKGROUND
In April 2019, the New York State Police recovered sexually explicit images of Gates‘s daughter (“V-1“) during a search of the residence and electronic devices of V-1‘s father, Christopher Perry, after receiving a tip that Perry had posted child pornography on Facebook. Certain of these images showed Perry and Gates sexually abusing V-1 – who wаs between two and five years old at the time. A forensic review of Perry‘s devices yielded at least seven images depicting the abuse of V-1, five of which gave rise to charges against Gates. These photographs indicated that Gates had sexually abused V-1 on at least two separate occasions: once when V-1 was wearing a “light[-]pink[-]colored tank top with a ruffled sleeve,” and once when V-1 was wearing a “bright[-]pink tank top [printed] with the letters F-U-N.” App‘x at 29–30. Investigators also identified several expliсit text message exchanges between Gates and Perry, in which the two described sexual fantasies involving V-1 as well as Gates‘s two older daughters and in which Gates represented that she herself would receive sexual gratification from the acts described. When speaking with the police, Gates admitted that she and Perry had sexually abused V-1 approximately four times over the preceding year and a half.
In March 2021, Gates waived her right to an indictment and pleaded guilty – without a plea agreement – to three cоunts of an information: one count of conspiracy to sexually exploit a child, in violation of
As set forth in Gates‘s PSR, the Prоbation Office calculated an adjusted offense level of fifty-one for Gates‘s conduct. The Probation Office arrived at this offense level by concluding, among other things, that none of the three counts should be grouped for Guidelines purposes and that certain enhancements should be applied because Gates used a cellphone to facilitate the sexual abuse of V-1, the photographs at issue portrayed sadistic content, and Gates qualified as a repeat and dangerоus sex offender against minors. The Probation Office then concluded that the appropriate total offense level was forty-three, the maximum offense level under the Guidelines. See U.S.S.G. Ch. 5, Pt. A, cmt. n.2 (“An offense level of more than 43 is to be treated as an offense level of 43.“). Having determined that Gates fell into criminal history category I, the PSR noted that the Guidelines sentencing table provided for a life term of imprisonment. But because each of the three counts of conviction carried a statutory maximum term оf thirty years’ imprisonment, the Guidelines sentence became ninety years.
The district court sentenced Gates on August 26, 2021, after adopting the factual information and Guidelines calculation set forth in the PSR without objection from defense counsel. The district court imposed a term of imprisonment of 540 months (or forty-five years), to be followed by fifteen years’ supervised release. Gates timely appealed.
II. DISCUSSION
As noted above, Gates raises a litany of challenges to the district court‘s sentence
A. Predetermination of Sentence
Gates first argues that the district court committed procedural error, asserting that the district court predetermined her sentence at the outset of the sentencing proceeding. Specifically, Gates points to the district court‘s statement at the beginning of the proceeding that it would deliver “a result that the [c]ourt feels is necessary,” App‘x at 68, and its statement in the middle of the proceeding that it had “arrive[d] at a sentence that [it] fe[lt] [wa]s appropriate аnd that [it] ha[d] to give her,” id. at 73, as demonstrating that the district court determined the sentence it intended to impose before hearing from defense counsel or Gates herself. We disagree.
The record reflects that Gates was “allowed a meaningful right to express relevant mitigating information before an attentive and receptive district judge.” Li, 115 F.3d at 133. Before sentencing, Gates provided the district court with a sentencing memorandum from counsеl and mitigation letters from Perry, Gates‘s mother, and Gates herself. At sentencing, the district court heard extensive argument from Gates‘s counsel and provided Gates with an opportunity to address the court, which she declined. Although Gates suggests that the district court had decided what sentence to impose before hearing from defense counsel or giving Gates an opportunity to be heard, the record reflects that the district court arrived at a sentence that it felt was adequate only after “review[ing] and considеr[ing] all the pertinent evidence.” App‘x at 78. On this record, we cannot conclude that the district court predetermined a sentence before Gates had a meaningful opportunity to provide mitigating information.
B. Miscalculation of the Offense Level Under the Sentencing Guidelines
Gates also argues that the district court miscalculated her offense level under the Sentencing Guidelines when it engaged in an improper grouping analysis under section 3D1.2, and wrongly applied enhancements for possession of sadistic images, use of a cellphone to solicit participation in sexually explicit conduct with a minor, and engagement in a pattern of
We begin with Gates‘s argument that the district court improperly treated Count One – the conspiracy сount – as a separate, third “group[]” under section 3D1.2 of the Sentencing Guidelines, resulting in a higher-than-appropriate offense level. Gates‘s Br. at 23–24. Section 3D1.2 provides that “[a]ll counts involving substantially the same harm shall be grouped together into a single [g]roup.” U.S.S.G. § 3D1.2. And while “[s]ection 3D1.2(d) specifically prohibits counts charging production of child pornography to be grouped together,” United States v. Brown, 843 F.3d 74, 82 (2d Cir. 2016) (emphasis added), section 3D1.2(b) makes clear that “counts involv[ing] the same victim and two or more acts or transactions connеcted by a common criminal objective or constituting part of a common scheme or plan” should be grouped together in a single group, U.S.S.G. § 3D1.2(b). Any doubt on this issue is resolved by comment 4 to section 3D1.2, which explains that “[w]hen one count charges a conspiracy or solicitation and the other charges a substantive offense that was the sole object of the conspiracy or solicitation, the counts will be grouped together under [section 3D1.2](b).” Id. § 3D1.2 cmt. n.4; see also id. § 3D1.2 cmt. n.8 (noting that where a defendant is cоnvicted of conspiring to commit multiple substantive offenses, the court should “treat the conspiracy count as if it were several counts” and then “apply the ordinary grouping rules“).
Here, it is undisputed that the conspiracy count involved the same victim, acts, and criminal objective as the two underlying substantive counts. See App‘x at 13–15 (the information). As such, we find that the district court erred by treating the conspiracy count as a separate group from the two underlying substantive counts under section 3D1.2. Nevertheless, had the district court not assigned the conspiracy count to a separate group, Gates‘s offense level would have been reduced from fifty-one to fifty. Because the highest offense level available under the Sentencing Guidelines is forty-three, the district court‘s grouping error could have had no impact on Gates‘s total offense level unless the district court made additional errors that combined to result in an eight-level enhancement. See Brown, 843 F.3d at 82 (concluding that alleged misapplication of Guidelines “would necessarily be harmless” where defendant‘s total offense level would still have exceeded the maximum offense level even absent the alleged error); United States v. Broxmeyer, 699 F.3d 265, 288 (2d Cir. 2012) (same).
We therefore turn to Gates‘s arguments regarding the challenged enhancements, and specifically Gates‘s argument that the district court erroneously applied the enhancement under section 4B1.5 of
In interpreting sеction 4B1.5(b), we have explained that “we accord Guidelines language its plain meaning: ‘two’ means two, not three; and ‘separate’ means the two occasions must be separate from each other, not that the two occasions demonstrating a pattern must be separate from (and in addition to) the crime of conviction.” Id. at 285. Here, Gates allocuted to two separate prohibited acts that formed the bases of the section 4B1.5 enhancement. The record reflects that two of thе predicate images depicted V-1 “wearing a light[-]pink[-]colored tank top,” App‘x at 29, and three other predicate images depicted V-1 “wearing a bright[-]pink tank top [printed] with the letters F-U-N,” id. at 29–30. On this record, we agree with the district court‘s application of the section 4B1.5 enhancement, since its finding of a “pattern” was supported by “two separate” instances of prohibited sexual misconduct. U.S.S.G. § 4B1.5 cmt. n.4(B)(i).
Gates‘s remaining arguments – that the district court plainly erred in assessing enhancements under the Guidelines for рossession of sadistic images and use of a cellphone to solicit participation in sexually explicit conduct with a minor – likewise fail, since any error in applying these enhancements would have had no impact on Gates‘s total offense level or the applicable sentencing range. The enhancements for sadistic images and use of a cellphone together accounted for a six-level increase in Gates‘s adjusted offense level. Even assuming that these enhancements were erroneously applied, and accounting for a one-level decrease as a result of the district court‘s grouping error, Gates‘s adjusted offense level would still be forty-four – one level above the cap imposed by the Guidelines. As such, we conclude that these purported errors cannot support remand in this case. See, e.g., Brown, 843 F.3d at 82 (finding alleged misapplication of enhancement for images portraying sadistic conduct to be harmless where defendant‘s “total offense level exceеded the highest offense level listed in the sentencing table by more than four levels, [resulting in a] Guidelines range [that] would have been identical even absent this [challenged] enhancement“); United States v. Cramer, 777 F.3d 597, 603 (2d Cir. 2015) (“An error in Guidelines calculation is harmless if correcting the error would result in no change to the Guidelines offense level and sentencing range.“); Broxmeyer, 699 F.3d at 288 (determining that alleged grouping error was harmless because the resulting one-level enhancement to defendant‘s offense level would not have made any difference to the district court‘s calculation of his sentencing range).
C. Substantive Unreasonableness of the Term of Imprisonment
Gates further argues that the forty-five-year sentence imposed by the district court was substantively unreasonable. We review the substantive reasonableness
Considered in the context of offenses involving sexual misconduct against minors, Gates‘s forty-five-year custodial sentence is not “shockingly high, shockingly low, or otherwise unsupportable as a matter of law.” Id. (internal quotation marks omitted). The district court found that Gates‘s total offense level was forty-three and her criminal history category was I. As a result, the Guidelines imprisonment range would have been life, but was capped at ninety years because each of the counts of conviction carried a maximum term of imprisonment of thirty years. The district court ultimately imposed a below-Guidelines sentence of forty-five years’ imprisonment, which it found to be “sufficient but not greater than necessary to comply with the purpose[s] of sentencing.” App‘x at 79. “In the overwhelming majority of cases, a Guidelines sentence will fаll comfortably within the broad range of sentences that would be reasonable in the particular circumstances.” United States v. Bryant, 976 F.3d 165, 181 (2d Cir. 2020) (internal quotation marks and alterations omitted). As a result, “[i]t is . . . difficult to find that a below-Guidelines sentence is unreasonable.” United States v. Perez-Frias, 636 F.3d 39, 43 (2d Cir. 2011). Here, the forty-five-year sentence imposed by the district court is well within the “broad range” of sentences that have been upheld as reasonable on similar facts. See, e.g., United States v. Pattee, 820 F.3d 496, 512–13 (2d Cir. 2016) (rejecting substantive reasonableness challenge to forty-seven-year sentence when dеfendant‘s offense “included the active use of a minor to engage in sexual activities for the purpose of producing child pornography“); United States v. Brown, 613 F. App‘x 58, 60 (2d Cir. 2015) (upholding sixty-year sentence where defendant “recruited [another person] to sexually exploit minors who were accessible to her, directed her to take pornographic photographs and videos of them, and provided instructions to her about the exact nature of the images and videos that he wanted“).1
Based on the record before us, we cannot say that the district court imposed a substantively unreasonable sentence.
Gates also contends that the district court erred by failing to verify at sentencing whether she had read and discussed the PSR with her counsel.
But the government‘s reliance on Cortez is misplaced given that
We take this occasion to emphasize the importance of the requirement that a district court verify that a defendant and her counsel have both read and discussed the PSR. Indeed, the Rule reflects the vital role the PSR plays in sentencing. See United States v. Palta, 880 F.2d 636, 640 (2d Cir. 1989) (“[A]n accurate presentence report is crucial both to ensure the fairness of an individual defendant‘s sentence and to enhance the overall goal of uniformity in sentencing.“). We therefore decline the governmеnt‘s invitation to overlook the intervening amendments to
Here, at no time during the sentencing hearing did the district court inquire, let alone ”verify,” whether Gates and her counsel had read and discussed the PSR.
Nevertheless, in the absence of a contemporaneous objection, we review a
Accordingly, Gates has failed to establish “a ‘reasonable probability’ that the [Rule 32] error affected the outcome of the proceeding,” Dussard, 967 F.3d at 156, which is fatal to her argument. Still, it bears noting that the district court‘s failure to comply with the basic dictates of Rule 32 in this instance – despite being specifically reminded of its obligation to do so – was inexcusable. We therefore concludе by stressing that district courts must be scrupulous in adhering to the requirements of Rule 32 when embarking on the important function of imposing sentences in criminal cases.
III. CONCLUSION
For these reasons, we AFFIRM the judgment of the district court.
RICHARD J. SULLIVAN
Circuit Judge