United States v. Sean Glasser , 663 F. App'x 180 ( 2016 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 15-3536
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UNITED STATES OF AMERICA
v.
SEAN VINCENT GLASSER,
Appellant
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
(D.C. Crim. No. 5-14-cr-00384-001)
District Judge: Honorable Jeffrey L. Schmehl
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Submitted Under Third Circuit LAR 34.1(a)
July 15, 2016
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Before: FUENTES, SHWARTZ and BARRY, Circuit Judges
(Opinion Filed: September 8, 2016)
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OPINION*
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BARRY, Circuit Judge
*
This disposition is not an opinion of the full court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
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Sean Vincent Glasser appeals his sentence of 90 months’ imprisonment following
his guilty plea to four counts of child pornography. He argues that his sentence is (1)
procedurally unreasonable because it is based upon clearly erroneous factual
determinations about the offense conduct and because the District Court failed to give
meaningful consideration to his arguments for mitigation; and (2) substantively
unreasonable because it was longer than necessary to satisfy the purposes of sentencing.
We will affirm.
BACKGROUND
On July 2, 2015, Glasser pleaded guilty to one count of transportation of child
pornography, in violation of 18 U.S.C. § 2252(a)(1); two counts of receipt of child
pornography, in violation of 18 U.S.C. § 2252(a)(2); and one count of possession of child
pornography, in violation of 18 U.S.C. § 2252(a)(4). In brief summary, on September 15,
2013, the National Center for Missing and Exploited Children was informed by Facebook
that Glasser had uploaded an image of child pornography to his online Facebook page.
Thereafter, Glasser’s home computer was searched and was found to contain
approximately fifty child pornography videos and 59,725 images of child pornography
and child erotica. The images and videos were downloaded using a file sharing program
called “FrostWire” and were stored in a folder on the desktop entitled “Special.” A38-39.
Glasser entered an open guilty plea and was sentenced on October 14, 2015.
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It is undisputed that with a total offense level of 34 and a criminal history category
of I, Glasser’s Guidelines range was 151-188 months. Glasser argued for a downward
variance to the mandatory minimum of sixty-months’ imprisonment, based on his
remorse; the long-lasting effects of having been bullied and socially isolated, as a little
boy, by his classmates because of his race; his psychological issues; his efforts toward
rehabilitation, which included post-arrest psychotherapy and medical treatment; his
family support; the supposedly flawed aspects of the U.S.S.G. § 2G2.2; and the
conclusion of his treating psychologist, Dr. Curt Nicholson, that he presents a low risk of
reoffending. The government argued for a sentence within the applicable Guidelines
range, relying upon the number of images Glasser possessed, the use of peer-to-peer
technology, the use of “sophisticated encryption technology”, and his involvement in
child pornography over “many, many years.” A177.
Dr. Nicholson, in his lengthy testimony on Glasser’s behalf at the sentencing
hearing, stated that Glasser was “not the typical pedophile”, and that viewing child
pornography was Glasser’s “primary mode for relieving his anxiety and for gaining
fantasies of punishment.” A198, 202. According to Nicholson, when Glasser viewed
child pornography, he identified with the victims, whom he viewed as “being punished,
as he deserved to be punished, for his rogue sexuality.” A197. On cross-examination,
Nicholson testified that Glasser did not tell him how vast his collection was, nor the
violent nature of those images and videos. Nicholson also testified that Glasser admitted
to rubbing the buttocks and genitals of children while at a water park, and to touching the
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genitals and buttocks of a ten-year-old girl in another instance. He did not, however,
consider these incidents to be relevant to his treatment of Glasser because they were
“about different issues” and occurred many years earlier. A214.
After the District Court also heard testimony from Glasser’s father, mother, wife,
and Glasser himself, it imposed a sentence of 90 months’ imprisonment, a term of
supervised release of 20 years, restitution of $2,500, a fine of $2,000, and a special
assessment of $400. In granting Glasser’s request for a variance, the Court stated that the
advisory Guidelines range was “too much,” and that it would vary downward based on
Glasser’s conduct after his arrest, his family support, his treatment, and “based upon the
fact that the other arguments made by defense counsel that some of the enhancing factors
do kind of merge together in some cases.” A260. The Court, however, determined not to
vary downward to the full extent requested by the defense, stating:
I simply cannot agree to sentence the defendant to the mandatory
minimum of five years in this case. Your conduct is much worse than
the conduct in many other cases where the defendants get five years.
The fact that you used FrostWire and advanced technology is
disturbing to the Court. Again, the sheer volume of images, the types
of images. . . . So an extensive period of imprisonment certainly is
necessary to serve as a deterrent to you or others and just punishment
for what you have done.
A259. This appeal followed.
II. JURISDICTION AND STANDARD OF REVIEW
The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction
pursuant to 28 U.S.C. § 1291. We review, in this case, the procedural reasonableness of a
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criminal sentence for plain error. United States v. Flores-Mejia, 759 F.3d 253, 255, 258
(3d Cir. 2014) (en banc) (“hold[ing] that, in a criminal prosecution, unless a relevant
objection has been made earlier, a party must object to a procedural error after the
sentence is pronounced in order to preserve the error and avoid plain error review.”) Plain
error requires a showing that (1) the court erred; (2) the error was obvious under the law
at the time of review; and (3) the error affected substantial rights, that is, the error
affected the outcome of the proceedings. Johnson v. United States, 520 U.S. 461, 467
(1997). We review the substantive reasonableness of a sentence under an abuse-of-
discretion standard. Gall v. United States, 552 U.S. 38, 46 (2007). The party challenging
the sentence bears the burden of showing that the sentence is unreasonable. United States
v. King, 454 F.3d 187, 194 (3d Cir. 2006).
ANALYSIS
Where a claim of procedural unreasonableness has been made, we must ensure
“that the district court committed no significant procedural error, such as failing to
calculate (or improperly calculating) the Guidelines range, treating the Guidelines as
mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly
erroneous facts, or failing to adequately explain the chosen sentence—including an
explanation for any deviation from the Guidelines range.” United States v. Tomko, 562
F.3d 558, 567 (3d Cir. 2009) (en banc) (quoting Gall, 552 U.S. at 51). For a sentence to
be procedurally reasonable, a district court must demonstrate “meaningful consideration
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of the relevant statutory factors and the exercise of independent judgment,” United States
v. Grier, 475 F.3d 556, 571–72 (3d Cir. 2007) (en banc), and “respond to colorable
arguments with a factual basis in the record,” United States v. Merced, 603 F.3d 203, 224
(3d Cir. 2010). A major variance from the Guidelines requires a more significant
justification than a minor one. Gall, 552 U.S. at 50.
Glasser argues that his sentence was procedurally unreasonable because the
District Court relied upon what Glasser claims were clearly erroneous factual
determinations about his conduct, and because it failed to give meaningful consideration
to several of his arguments for a lower sentence. The “factual determinations” to which
Glasser alludes are based upon the Court’s determination that Glasser’s conduct was
“much worse than the conduct in many other cases where the defendants get five years,”
because Glasser “used FrostWire and advanced technology” and because of the
“volume . . . [and] types of images.” A259. Glasser contends that the Court
mischaracterized FrostWire as “advanced technology,” in contrast to “more sophisticated
offenders” who create private trading communities. App. Br. at 17-22. He also asserts
that the Court erred in concluding that the number of images he possessed made this case
different, because, he states, technology makes it possible for offenders to accumulate
large collections of images regularly. He asserts, as well, that the Court failed to give
meaningful consideration to several of his arguments, including those about his childhood
exposure to pornography, his anxiety disorder, his remorse, his amenability to
rehabilitation, his low risk of recidivism, and his legal challenges to U.S.S.G. § 2G2.2.
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The District Court followed proper sentencing procedure while imposing an
eminently reasonable sentence. It provided a concededly accurate calculation of Glasser’s
Guidelines range while noting its advisory nature, and heard testimony from several
members of Glasser’s family, Dr. Nicholson, and Glasser himself, thereafter granting his
request for a variance, and sentencing him to a term of imprisonment that was 61 months
less than the minimum of the applicable Guidelines range.
We simply make the following observations. However “FrostWire” is categorized
in terms of sophistication, it is still a file-sharing computer program, not a simple internet
search, which facilitated Glasser’s and many other offenders’ stockpiling of tens of
thousands of images of child abuse and pornography. Moreover, the District Court
carefully addressed most of the numerous factors that Glasser presented in mitigation
when it explained why the variance was granted. See A260. The Court provided its
reasons for its rulings and was not required to disregard § 2G2.2 for policy reasons if it
did not disagree with it. United States v. Lopez-Reyes, 589 F.3d 667, 671 (3d Cir. 2009);
see United States v. Grober, 624 F.3d 592, 609 (3d Cir. 2010) (“[I]f a district court does
not in fact have a policy disagreement with § 2G2.2, it is not obligated to vary on this
basis.”). “[W]e must have an explanation from the district court sufficient for us to see
that the particular circumstances of the case have been given meaningful consideration
within the parameters of § 3553(a).” United States v. Levinson, 543 F.3d 190, 196 (3d
Cir. 2008). That being said, “[t]his does not mean that the sentencing court is required to
‘discuss and make findings as to each of the § 3553(a) factors if the record makes clear
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the court took the factors into account in sentencing.’” United States v. Thornhill, 759
F.3d 299, 311 (3d Cir. 2014) (quoting United States v. Bungar, 478 F.3d 540, 543 (3d
Cir. 2007)). The record is certainly clear that it did.
And, of course, a district court’s decision is “accord[ed] great deference,” when
being reviewed for substantive reasonableness. United States v. Lessner, 498 F.3d 185,
204 (3d Cir. 2007). We will affirm a procedurally sound sentence as substantively
reasonable “unless no reasonable sentencing court would have imposed the same
sentence on that particular defendant for the reasons the district court provided.” Tomko,
562 F.3d at 568.
Glasser argues that the sentence imposed was longer than necessary to comply
with the purposes of sentencing. He contends that the supposed procedural errors at his
sentencing led to a substantively unreasonable sentence, relying on our decision in United
States v. Olhovsky, 562 F.3d 530 (3d Cir. 2009). In that case, we found that the district
court erred by basing its sentence entirely on the nature of the crime and failing to
consider the nature and characteristics of the offender, when we stated, “it is exceedingly
difficult to review this sentencing transcript without becoming convinced that the district
court was so appalled by the offense that it lost sight of the offender.” Id. at 549.
Here, however, the District Court did not solely focus on the nature of Glasser’s
offenses and it gave him an unfettered opportunity to present evidence in support of
mitigation. He did so. As noted above, the Court cited several of Glasser’s arguments
regarding his nature, background, and characteristics when explaining why it granted his
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request for a substantial variance. And it stated: “I’ve listened very closely, I’ve read a lot
of things, I’ve listened to all the people that have testified here today, and I see a man
who has admittedly struggled with his sexual obsessions, his sexual addiction, his
propensity for minors, for a young age.” A258. The sentence imposed was procedurally
sound and substantively reasonable.
CONCLUSION
The judgment of the District Court will be affirmed.
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