United States v. Samuel Condo, Jr.

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 16a0323n.06
No. 15-3863
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
Jun 14, 2016
UNITED STATES OF AMERICA, ) DEBORAH S. HUNT, Clerk
)
Plaintiff-Appellee, )
) ON APPEAL FROM THE UNITED
v. ) STATES DISTRICT COURT FOR
) THE NORTHERN DISTRICT OF
SAMUEL E. CONDO, JR., ) OHIO
)
Defendant-Appellant. )
BEFORE: BOGGS, ROGERS, and STRANCH, Circuit Judges.
PER CURIAM. Samuel E. Condo, Jr., a federal prisoner, appeals the sentence of
188 months of imprisonment imposed following his guilty plea to charges of enticement, receipt
and transport of visual depictions of minors engaged in sexually explicit conduct, transfer of
obscene material to a minor, and travel to engage in illicit sexual conduct.
Condo was sentenced at the bottom of the guidelines-range computation, to which no
objections were raised. He argues that the district court issued a procedurally unreasonable
sentence because it “gave scant consideration” to the sentencing factors within 18 U.S.C.
§ 3553(a), including Condo’s personal history of mental illness and the fact of his having been
molested at a young age. Appellant’s Br. at 24. He also argues that the district court issued a
substantively unreasonable sentence because the district court did not take into consideration
Condo’s characteristics as a victim of sexual abuse and his potential for rehabilitation. Id. at 28.
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United States v. Condo
He further argues that the district court should have granted a departure or variance from the
guidelines range based on consideration of the sentencing factors, particularly his history of
sexual abuse as a child. Finally, he argues that his sentence violates the Eighth Amendment
because his criminal history category of II overstated his criminal history, which consisted of
two convictions of driving under the influence, and because the district court failed to consider
his characteristics as a victim of childhood sexual abuse and his need for rehabilitation. Id. at
30-31, 31-40.
We generally review a criminal sentence for reasonableness under an abuse-of-discretion
standard. Gall v. United States, 552 U.S. 38, 41 (2007). A sentence within the guideline range is
entitled to a rebuttable presumption of substantive reasonableness. United States v. Cruz, 461
F.3d 752, 754 (6th Cir. 2006). “However, where . . . the defendant fails to lodge any objection at
the ending of the sentencing hearing in response to a properly worded invitation from the court in
compliance with United States v. Bostic, 371 F.3d 865 (6th Cir. 2004), we review only for plain
error” a challenge to the procedural reasonableness of the defendant’s sentence. United States v.
Gunter, 620 F.3d 642, 645 (6th Cir. 2010); United States v. Penson, 526 F.3d 331, 337 (6th Cir.
2008) (discussing the Bostic question and observing that “while defendants do not need to raise
the claim of substantive unreasonableness before the district court to preserve the claim for
appeal, defendants must do so with respect to claims of procedural unreasonableness”). Because
the district court asked the Bostic question and Condo did not lodge any objection to the district
court’s explanation of his sentence, we review the procedural reasonableness of his sentence for
plain error and review the substantive reasonableness of his sentence under the abuse-of-
discretion standard. Review of the sentencing transcript in this case reveals no plain error or
abuse of discretion by the district court. The district court carefully considered the § 3553(a)
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No. 15-3863
United States v. Condo
factors in determining Condo’s sentence. The district court also addressed and rejected the
argument that Condo’s criminal history was overstated, and considered and rejected his
arguments to vary or depart downwards, finding consideration of his personal history
outweighed by the seriousness of his offense and the need to protect the public. Condo’s within-
guidelines sentence is therefore substantively and procedurally reasonable.
Condo did not argue below that his sentence violated the Eighth Amendment. Therefore,
we review this issue for plain error only. United States v. Vonner, 516 F.3d 382, 385 (6th Cir.
2008) (en banc). No plain error occurred, as the Eighth Amendment forbids only sentences that
are grossly disproportionate to the crimes of conviction. United States v. Hughes, 632 F.3d 956,
959 (6th Cir. 2011).
Although the district court acknowledged that it could have imposed a shorter sentence, it
was not required to do so, and Condo’s arguments are insufficient to disturb the district court’s
judgment. See United States v. Smith, 516 F.3d 473, 478 (6th Cir. 2008). Accordingly, we
AFFIRM the sentence imposed by the district court.
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