11-2593-cr United States v. Pulsifer UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT 

## SUMMARY ORDER
Rulings by summary order do not have precedential effect. Ci tation 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 docu ment filed with this court, a party must cite either the Federal Appendix or an electron ic database (with the notation A 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 Daniel Patrick Moynihan United St ates Courthouse, 500 Pearl Street, in the City of New York, on the 27 th day of April, two thousand twelve. PRESENT: AMALYA L. KEARSE, BARRINGTON D. PARKER, PETER W. HALL, Circuit Judges

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_____________________________________________ U NITED S TATES OF A MERICA Appellee , v. No. 11-2593-cr
T IMOTHY P ULSIFER , Defendant-Appellant

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______________________________________________ FOR DEFENDANT-APPELLANT: M ARK S CHNEIDER , Office of Mark A. Schneider, Plattsburgh, New York. FOR APPELLEE: B RENDA K. S ANNES (Richard D. Belliss, of counsel ) Assistant United States Attorneys, for Richard Hartunian, United States Attorney for the Northern District of New Yor k, Syracuse, New York.2 Appeal from a judgment of the United States Di strict Court for the Northern District of New York (Mordue, then Chief Judge ). UPON DUE CONSIDERATION , IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment entered on May 26, 2011, is AFFIRMED

. Defendant-Appellant Timothy Pulsifer pled guilty to three counts of transporting child pornography, in violation of 18 U.S.C. § 2252(a)(1) and (b)(1), and one count of distributing child pornography, in violation of 18 U.S.C. §§ 2252(a)(2) and (b)(1). The district court principally sentenced Pulsifer to a non-guidelines sentence of 121 months’ imprisonment to be followed by a life term of supervised release. On appeal, Pulsifer argues that the district court committed procedural error in (1) failing to give due consideration to the sec tion 3553(a) factors; (2) failing to apply a two-level downward departure in light of the Government’s U.S.S.G. § 5K1.1 motion; (3) failing to give greater weight than it did to a psyc hologist’s report on Pulsifer’s risk of recidivism; and (4) failing to consider the disparity between federal child porn sentences and state sexual abuse cases. Pulsifer also argues that the 121 months sentence is substa ntively unreasonable in light of this Circuit’s holding in United States v. Dorvee , 616 F.3d 174 (2d Cir. 2010). We assume the parties’ familiarity with the underlying facts and procedural history, elaborating only where necessary to explain ou r decision to affirm. We review all sentences for reasonableness. United States v. Fernandez, 443 F.3d 19, 27 (2d Cir. 2006). Reasonableness review is akin to abuse of discreti on, and we consider the substantive reasonableness of the sent ence as well as the procedures us ed to arrive at the sentence. United States v. Cavera , 550 F.3d 180, 187 (2d Cir. 2008). On reasonableness review of a challenged sentence, we apply a “deferen tial abuse-of-discr etion standard.” Gall v. United3 States , 552 U.S. 38, 41 (2007); Cavera , 550 F.3d at 189. That st andard recognizes that reasonableness “‘is inherently a concept of flexible mean ing, generally lacking precise boundaries.’” United States v. Verkhoglyad , 516 F.3d 122, 134 (2d Cir. 2008) (quoting United States v. Crosby , 397 F.3d 103, 115 (2d Cir. 2005)). In order to impose a procedurally reasonable sentence, a district court must “(1) normally determine the applicable Guidelines range, (2) cons ider the Guidelines along with the other factors under § 3553(a), and (3) determine whether to impos e a Guidelines sentence or a non-Guidelines sentence.” United States v. Villafuerte , 502 F.3d 204, 206–07 (2d Cir. 2007); accord Gall , 552 U.S. at 53. Procedural error occurs in situ ations where, for exampl e, the district court miscalculates the Guidelines, construes the Guide lines as mandatory, fails to explain adequately the sentence imposed; does not properly consider th e section 3553(a) factors, or bases its sentence on clearly erroneous facts. See Gall, 552 U.S. at 51. Pulsifer argues that the di strict court’s assessment of the section 3553(a) factors was insufficient and did not address his need for treatment as requ ired by section 3553(a)(2)(D). Because Pulsifer did not raise these issues below, our review is for plain error. United States v. Cossey , 632 F.3d 82, 86-7 (2d Cir. 2011). Although 18 U.S.C. § 3553(a) instructs a sentencing judge to consider a number of factors, we have ne ver construed that obliga tion to require the judge to make explicit reference to each factor considered. See Fernandez , 443 F.3d at 29. At the sentencing hearing here, the parties stated that they had no “objections to the facts as stated in the pre-sentence report” and that they agreed with the PSR’s fi ndings that Pulsifer’s offense level was 37 and his criminal history cat egory was I, which, in light of the statutory maximum prison term of 20 years, resulted in a Guidelines-recommended prison term in the range4 of 210-240 months. The government, pursuant to Guidelines § 5K1.1, had moved for a reduced sentence of 168-175 months in light of Pulsifer’s substantial assistance to the government. The district court, in sent encing Pulsifer, stated, inter alia , that it “ha[d] consider ed the factors outlined in 18 U.S.C. [§] 3553(a).” The court referred fi rst to the so-called pa rsimony clause of that section and stated that it would impose a lower sentence because the “pena lty associated with the guideline range . . . appear [ed] to be more than that which is reasonable and necessary to meet the goals of the sentencing that are outlined in 18 U. S.C. [§] 3553(a).” In determining how much below the Guidelines-recommended range an ap propriate sentence for Pulsifer would be, “[h]owever, [the court] note[d ] that” several “aggravating fact ors [warranted] a substantial sentence.” The court proceeded to describe the nature and circumstances of Pulsifer’s offenses, and Pulsifer’s history and characteri stics, see 18 U.S.C. § 3553(a)(1), including his “engag[ing] in sexual activities over the webcam with minors as young as 12 and 13 years old on four or five occasions, as well as having sexual conversations with minors and who did not have a webcam on approximately 15 occasions,” his “possessi[ on of] hundreds of child pornography videos,” including “depict[ions of] prepubescent minors and sadomasochistic conduct,” and his having “bec[o]me so addicted to . . . the pornography [t hat he] couldn’t stop”--a factor that also implicated, inter alia , the need “to protect the public from further crimes of the defendant,” 18 U.S.C. § 3553(a)(2)(C). Pulsifer responded “Yes” and “Yes, sir” to those descriptions. Based on these considerations and on the reduced-sente nce “motion of the government pursuant to [§] 5K1.1,” the court sentenced Pulsifer principally to concurrent prison terms of 121 months. Accordingly, the district court’s analysis of th e section 3553(a) factors set forth in the record5 defeats any suggestion by Pulsifer that the district court gave inad equate reasons for the challenged

sentence. Moreover, to the extent that the district court did not credit on the r ecord Pulsifer’s claimed mitigating factors of strong family and community ties, limited criminal hi story, and low risk of recidivism, these arguments were embodied in Pulsifer’s sentencing memorandum, which the court read, and in the arguments made by his coun sel at sentencing. With regard to treatment, Pulsifer did not argue to the di strict court the need for the sentence imposed to “provide the defendant with needed . . . correctional treatment ,” and Pulsifer cannot establish plain error by merely noting that the district court di d not explicitly address this factor. See generally Villafuerte , 502 F.3d at 207-08; Fernandez , 443 F.3d at 30. As we do not require a district court to reference specifically each sect ion 3553(a) factor to demonstrate that the court considered them, we find no error, much less plain error, in the fact the district court did not do so here. To the extent that Puslifer argues that the district failed to consider, sua sponte , federal and state sentencing disparities, he failed to raise this clai m before the district cour t and we find no error in the district court not cons idering those disparities sua sponte

. See United States v. Johnson , 505 F.3d 120, 122 (2d Cir. 2007) (“[A] Dist rict Court is not required to c onsider potential federal/state sentencing disparities when sent encing a federal defendant.”). Pulsifer, relying on Dorvee , next argues that his non-guidelin es sentence of 121 months is substantively unreasonable. “[I]n the great majority of cases, a range of sentences . . . must be considered reasonable,” United States v. Jones , 531 F.3d 163, 174 (2d Cir. 2008), and we will “set aside a district court’s substantive determinati on” as to an appropria te sentence “only in exceptional cases where the trial court’s decision ca nnot be located within the range of permissible6 decisions,” Cavera , 550 F.3d at 189 (internal quotation marks and emphasis omitted). Dorvee is readily distinguishable from this case. In Dorvee , this Court held that a sentence of 240 months for a first-time offender who pleaded guilty to di stribution of child pornography was procedurally and substantively unreasonable. 616 F.3d at 188. With respect to the district court’s ruling in
Dorvee , we concluded that, even though the senten ce was a within-Guidelines sentence, the sentence imposed was substantively unreasonable. Id . at 183. Explaining our discomfort with the lower court’s apparent assumption that a de fendant would actually sexually assault a child, notwithstanding that his offense involved only viewing and distributi ng child pornography, we concluded that the district court provided no rationale for why the maximum sentence of incarceration was chosen by the court in viol ation of section 3553(a) ’s parsimony clause. Id. at 183–84. Moreover, procedural errors in Dorvee contributed to the dist rict court’s substantive

error. Id. at 184. In this case, Pulsifer’s sent ence is procedurally sound. It is nowhere near the statutory maximum of 240 months. The court determined it after a detailed and in dividualized assessment of Pulsifer’s crimes and relevant conduct, including the nature of the videos possessed and transported in connection with the crimes charge d, and his having engaged in sexual activities with children via webcam. The district court further c onsidered the unusually harsh impact of the child pornography Guidelines as well as Pulsifer’s assist ance to authorities. Accordingly, we hold that the sentence is substantively reasonable. We also reject Pulsifer’s contention that the district court gave insu fficient weight to the psychologist’s report, because where “the ultimate sentence is reasonable and the sentencing judge did not commit procedural error in imposing that sentence, we will not second guess the weight (or7 lack thereof) that the judge accorded to a given fa ctor or to a specific argument made pursuant to that factor,” Fernandez , 443 F.3d at 34. We have considered each of Pulsifer’s remaining claims and find them to be without merit. The judgm ent of the district court is hereby AFFIRMED.

FOR THE COURT: Catherine O = Hagan Wolfe, Clerk