15-567-cr
United States v. Richards

UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRON IC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated Term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York on the
20 th day of May two thousand sixteen.

Present: ROSEMARY S. POOLER, PETER W. HALL, SUSAN L. CARNEY, Circuit Judges

.

_____________________________________________________

UNITED STATES OF AMERICA,

Appellee

,

v. 15-567-cr

RONALD J. RICHARDS,

Defendant-Appellant

.

_____________________________________________________

Appearing for Appellant: James F. Greenwald, A ssistant Federal Public Defender (James P. Egan, on the brief ), for Lisa A. Peebles, Federal Public Defender for the Northern District of New York, Syracuse, NY.

Appearing for Appellee: Rajit S. Dosanjh, Assistant United States Attorney (Lisa M. Fletcher, on the brief ), for Richard S. Hartuni an, United States Attorney for the Northern Distri ct of New York, Syracuse, NY.

Appeal from the United States District Court for the Northern District of New York (Hurd, J. ).2 ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED

.

Ronald Richards appeals from the Febr uary 18, 2015 judgment of conviction entered against him in the United States District Court for the Northern District of New York (Hurd, J. ).
The district court sentenced Ri chards principally to 360 months’ imprisonment. On appeal, Richards argues that his sentence is procedurally and substantiv ely unreasonable. We assume the parties’ familiarity with the underlying facts, pr ocedural history, and specification of issues for
review.

We review a sentence for procedural and substantive reasonableness under a “deferential
abuse-of-discretion standard.” Gall v. United States , 552 U.S. 38, 41 (2007). “A sentence is procedurally unreasonable if the district court ‘fails to calculate (or improperly calculates) the Sentencing Guidelines range, treats the Sentencing Guidelines as ma ndatory, fails to consider the § 3553(a) factors, selects a sent ence based on clearly erroneous f acts, or fails adequately to explain the chosen sentence.’” United States v. Aldeen , 792 F.3d 247, 251 (2d Cir. 2015) (quoting United States v. Chu , 714 F.3d 742, 746 (2d Cir. 2013)). “Once we have determined that the sentence is procedurally sound, we then review the substantiv e reasonableness of the
sentence . . . .” United States v. Dorvee , 616 F.3d 174, 179 (2d Cir. 2010).

Richards argues that the di strict court procedurally e rred in applying a five-level sentencing enhancement for “engag[ing] in a pa ttern of activity involvi ng the sexual abuse or exploitation of a minor.” See U.S. Sentencing Guidelines Manual § 2G2.2(b)(5). Because Richards raises this issue for the first time on appeal, we review for plain error. United States v.
Wernick , 691 F.3d 108, 113 (2d Cir. 2012)

. Under the plain-error standard, we have the
discretion to correct an error that seriously affects the fairness, integrity, or public reputation of judicial proceedings if there is “(1) [an] ‘error,’ (2) that is ‘plain,’ and (3) that ‘affect[s] substantial rights.’” Johnson v. United States , 520 U.S. 461, 467 (1997) (alteration in original) (quoting United States v. Olano , 507 U.S. 725, 732 (1993)).

Section 2G2.2 of the Guidelines directs the district court to increase the offense level by five levels “[i]f the defendant engaged in a pattern of activity invol ving the sexual abuse or exploitation of a minor.” U.S. Sentencing Guide lines Manual § 2G2.2(b)(5). An application note to Section 2G2.2 defines “pattern of activity i nvolving the sexual abus e or exploitation of a minor” as “any combination of two or more separa te instances of the sexua l abuse or exploitation of a minor by the defendant, whether or not th e abuse or exploitation (A) occurred during the course of the offense; (B) involved the same mi nor; or (C) resulted in a conviction for such
conduct.” Id. § 2G2.2 cmt. n.1. The same application note defines “sexual abuse or exploitation” as any one of the following:

(A) conduct described in 18 U.S. C. § 2241, § 2242, § 2243, § 2251(a)–(c), § 2251(d)(1)(B), § 2251A, § 2260(b), § 2421, § 2422, or § 2423; (B) an offense under state law, that would have been an offense under any such section if the offense had occurred within the special ma ritime or territorial jurisdiction of the United States; or (C) an attempt or cons piracy to commit any of the offenses under subdivisions (A) or (B).3 Id. “Sexual abuse or exploitation” does not, howev er, include “possession, accessing with intent to view, receipt, or trafficking in material relati ng to the sexual abuse or exploitation of a minor.”
Id.

Section 2251(a) subjects to punishment “[ a]ny person who employs, uses, persuades, induces, entices, or coerces any minor to engage in . . . sexually explicit conduct for the purpose of producing any visual depiction of such conduct or for the purpose of transmitting a live visual depiction of such conduct.” 18 U.S.C. § 2251(a) . The terms “persuade,” “induce,” and “entice” are “words of common usage that have plain an d ordinary meanings,” and convey the idea of “lead[ing] or mov[ing]” another “by persuasion or influence, as to some action, state of mind, etc.” or “bring[ing] about, produc[ing], or caus[ing].” United States v. Broxmeyer , 616 F.3d 120, 125 (2d Cir. 2010) (some alterations in or iginal) (internal quotation marks omitted).

Here, the district court did not plainly e rr in concluding that Richards engaged in a pattern of activity involv ing the sexual abuse or exploitation of a minor. The presentence report indicated that Richards traded explicit nude photographs with a minor and distributed her photographs to other men via the internet. He purchased a sex toy a nd a cell phone and mailed these items to the minor, who later sent pictur es to Richards of he rself using the sex toy. Richards and another minor also traded nude pictur es of each other over the internet. In view of these facts, the district court did not plainly err in concluding that there were at least two separate instances where Richards “induce[d], entice[d], or coerce[d]” a minor to engage in sexually explicit conduct “for the purpose of producing any visual depiction of such conduct.” 18 U.S.C. § 2251(a).

Richards also challenges the substantive re asonableness of his sentence. A sentence is substantively unreasonable if the sentence “‘shock[s] the conscience,’ constitutes a ‘manifest injustice,’ or is otherwis e substantively unreasonable.” Aldeen , 792 F.3d at 255 (alteration in original) (quoting United States v. Rigas , 583 F.3d 108, 123 (2d Cir. 2009)). “Our review for
substantive unreasonableness is ‘particularly deferential.’” Id. (quoting United States v. Broxmeyer , 699 F.3d 265, 289 (2d Cir. 2012)). “We will se t aside sentences as substantively unreasonable only in exceptional cases where the tr ial court’s decision cannot be located within the range of permissible decisions, that is, wh en sentences are so shockingly high, shockingly low, or otherwise unsupportable as a matter of la w that allowing them to stand would damage the administration of justice.” Id. (citations and internal quotation marks omitted).

Richards’s 360-month sentence, which is with in the Guidelines range, is substantively reasonable. “While we do not presume that a Gu idelines sentence is necessarily substantively reasonable, that conclusion is warranted in the overwhelming majority of cases . . . .” United
States v. Messina , 806 F.3d 55, 66 (2d Cir. 2015) (inter nal quotation marks omitted). The presentence report indicated that Richards engaged in a series of e-mail communications with a
man who told Richards that he was sexually abusing his daughter . The man sent Richards image and video files depicting this a buse, which took place over the course of several years. Richardsdistributed some of these files to others over the internet. Richards also exchanged multiple emails with another man, who sent Richards child pornography that include d nude images of the man’s daughter. These facts support the district court’s conclusi on that Richards “knew children were being actively sexually abused,” “knew thei r abusers,” “knowingly re ceived evidence of the abuse in the form of image and video files,” and “traded child pornography with the men who4 were creating it,” thus “fuel[i ng] the production of even more images of the young victims.” App’x at 80. Additionally, as not ed, Richards traded nude photogra phs directly with two minors over the internet. Finally, a forensic examinati on of Richards’s computers and thumb drives revealed more than 3,700 images and 40 vide os of child pornography, including images and videos depicting sadistic and masochistic conduct and depictio ns of sexually explicit conduct involving children as young as one and three year s old. Under the circumstances, the sentence does not fall outside the range of permissible decisions.

We have considered the remainder of Richar ds’s arguments and find them to be without merit. Accordingly, the order of the district court hereby is AFFIRMED.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk