USA v. Daniel Fry

Filing

OPINION [1668715] filed (Pages: 8) for the Court by Judge Srinivasan. [15-3062]

USCA Case #15-3062

Document #1668715

Filed: 03/31/2017

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 21, 2016

Decided March 31, 2017

No. 15-3062
UNITED STATES OF AMERICA,
APPELLEE
v.
DANIEL FRY,
APPELLANT

Appeal from the United States District Court
for the District of Columbia
(No. 1:15-cr-00016-1)

Michael Alan Olshonsky, appointed by the court, argued
the cause and filed the briefs for appellant.
David P. Saybolt, Assistant U.S. Attorney, argued the
cause for appellee. With him on the brief were Elizabeth
Trosman and John P. Mannarino, Assistant U.S. Attorneys.
Before: GRIFFITH, SRINIVASAN, and MILLETT, Circuit
Judges.
Opinion for the Court filed by Circuit Judge SRINIVASAN.

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SRINIVASAN, Circuit Judge: Daniel Fry pleaded guilty to
one count of possession of child pornography, in violation of
18 U.S.C. § 2252A(a)(5)(B). On appeal, Fry raises procedural
and substantive challenges to the sentence imposed against him
by the district court. His arguments principally revolve around
the proposition that the district court, for policy-based reasons,
should have varied from the Sentencing Guidelines provisions
addressing child-pornography offenses. We reject Fry’s
arguments and affirm the sentence imposed by the district
court.
I.
On June 11, 2014, Fry met an undercover agent on a
social-networking site after Fry had posted several links to
child pornography on the site’s public chat room. On June 24,
2014, Fry contacted the undercover agent, who was posing as
the father of an eight-year-old girl. During their conversation,
Fry offered to send the agent forty videos of child pornography
in exchange for watching (via webcam) the agent sexually
abuse the purported eight-year-old child. Fry then sent the
agent several images and videos containing child pornography.
Many of the images and videos depicted prepubescent females
engaging in sex acts with adults and other prepubescent
children.
Officers arrested Fry and executed a search warrant at his
home. During the search, the officers recovered over 600
images of child pornography. The images included depictions
of prepubescent children engaged in sadomasochistic sex acts.
Fry pleaded guilty to one count of possession of child
pornography. As part of his plea agreement, Fry agreed to the
applicability of certain enhancements under the Sentencing
Guidelines because his child-pornography offense involved:

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material with a prepubescent minor or minor under twelve,
U.S.S.G. § 2G2.2(b)(2), distribution of material, id.
§ 2G2.2(b)(3)(F), portrayal of sadistic or masochistic conduct,
id. § 2G2.2(b)(4), use of a computer, id. § 2G2.2(b)(6), and 600
or more images, id. § 2G2.2(b)(7)(D). Fry also agreed that his
estimated Sentencing Guidelines range was 97 to 121 months
and that a sentence within that range would be reasonable.
The district court sentenced Fry to 108 months of
imprisonment, to be followed by 120 months of supervised
release. Fry now appeals his sentence.
II.
Fry raises both procedural and substantive challenges to
his sentence. The government contends as a threshold matter
that we should decline to address Fry’s arguments because, as
part of his plea agreement, he waived the right to appeal any
sentence within the Guidelines range. Fry responds that his
appeal waiver should not be enforced because the district court
mischaracterized the waiver in a colloquy with Fry in his plea
hearing. See United States v. Godoy, 706 F.3d 493, 495-96
(D.C. Cir. 2013). We have no need to resolve whether Fry
waived his right to appeal his sentence. Because the waiver
question does not go to our court’s jurisdiction, we can forgo
deciding it if we reject Fry’s sentencing challenges on the
merits, which we do here for reasons we now explain. See
United States v. Shemirani, 802 F.3d 1, 3 (D.C. Cir. 2015).
A.
We first address Fry’s claim that the district court
procedurally erred in imposing his sentence. Because Fry
failed to raise his procedural objections in the district court, we
review the claims for plain error. See United States v. Melgar-

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Hernandez, 832 F.3d 261, 266 (D.C. Cir. 2016). To prevail
under the plain-error standard, Fry must show that the district
court made a “(1) legal error that (2) was plain, (3) affected the
defendant’s ‘substantial rights,’ and (4) seriously affected the
‘fairness, integrity or public reputation of the judicial
proceedings.’” United States v. Head, 817 F.3d 354, 359 (D.C.
Cir. 2016) (quoting United States v. Olano, 507 U.S. 725, 732
(1993)). Fry fails to satisfy that standard.
Fry initially contends that the district court failed to give
adequate consideration to the sentencing factors set out in 18
U.S.C. § 3553(a). That provision calls for a sentencing court
to consider certain factors, including the nature and
circumstances of the offense, the defendant’s history, the
seriousness of the offense, the need to deter criminal conduct
and protect the public from further crimes, the sentencing
range, and the interest in avoiding unwarranted sentence
disparities among similarly situated defendants. A district
court, however, “need not consider every § 3553(a) factor in
every case.” In re Sealed Case, 527 F.3d 188, 191 (D.C. Cir.
2008).
The district court gave adequate consideration to those
factors here. The court explained that it viewed the offense
conduct to be particularly serious because Fry offered to give
the undercover agent pornographic materials if the agent would
allow Fry to watch the agent sexually abuse a child victim. The
case therefore involved “more than possession. We have
bartering.” Sentencing Hr’g Tr. at 5. The bartering, the district
court emphasized, was especially troubling because it would
have created “a new victim.” Id. at 23. The court repeatedly
highlighted the serious nature of Fry’s conduct and explained
that the sentence would deter Fry and “others who may be
inclined in doing similar kinds of things.” Id. at 25. The court
thus determined that the sentence was “fair and just” and

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“reflects the seriousness of the offense.” Id. Those statements
demonstrate the court’s consideration of the pertinent
sentencing factors.
Fry’s next procedural challenge contends that the district
court gave inadequate consideration to his policy-based
argument for a sentence below the Guidelines range. His
argument was that the Guidelines for child-pornography
offenses should be disregarded because they give rise to
sentencing enhancements in too great a share of childpornography cases. We address the substance of that argument
below, but with regard to Fry’s contention that the district court
gave it insufficient consideration, a district court, we have
explained, must “provide a ‘reasoned basis’ for its decision and
consider all ‘nonfrivolous reasons’ asserted for an alternative
sentence” at the time of sentencing. United States v. Locke,
664 F.3d 353, 357 (D.C. Cir. 2011) (quoting Rita v. United
States, 551 U.S. 338, 356-57 (2007)); see 18 U.S.C. § 3553(c).
As long as the district court provides a reasoned basis, “we
generally presume that [the court] adequately considered the
arguments and will uphold the sentence if it is otherwise
reasonable.” Locke, 664 F.3d at 358.
Those standards are satisfied here. The district court stated
that it had “taken into consideration” the arguments made by
Fry’s counsel in deciding against giving Fry a sentence at the
upper end of the Guidelines range. Sentencing Hr’g Tr. at 25.
When Fry’s counsel raised concerns about certain of the
Guidelines enhancements for child-pornography offenses, the
district court explained that, even absent those enhancements,
the serious nature of Fry’s conduct remained. The court later
affirmatively acknowledged that it had heard Fry’s argument
and had also read Fry’s pleadings on the point. The record thus
confirms that the district court considered Fry’s arguments for
a sentence below the Guidelines range.

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In short, Fry fails to identify any procedural error, let alone
plain error, committed by the district court in imposing his
sentence.
B.
We turn next to Fry’s argument that the sentence imposed
by the district court was substantively unreasonable. “[W]e
review claims of substantive unreasonableness for abuse of
discretion, regardless of whether an objection on those terms
was made” at sentencing. United States v. Russell, 600 F.3d
631, 633 (D.C. Cir. 2010). The 108-month sentence imposed
by the district court was within the Guidelines range and is thus
presumptively reasonable. See id. at 634. In fact, Fry expressly
conceded in his plea agreement that a sentence within that
range would be reasonable.
Fry claims that the sentence nevertheless was
unreasonable and the district court should have varied
downward because the child-pornography Guidelines,
U.S.S.G. § 2G2.2, are based on congressional mandates rather
than empirical studies. Fry notes that district courts have
discretion to vary from the Guidelines for crack-cocaine
offenses “based on a policy disagreement with those
Guidelines.” Fry Br. 12 (quoting Spears v. United States, 555
U.S. 261, 266 (2009)). He claims the child-pornography
Guidelines contain largely the same flaws as the crack-cocaine
Guidelines and thus require the same treatment. Specifically,
Fry highlights that many of the enhancements listed in section
2G2.2 apply to ordinary offenders, giving rise to
disproportionately severe sentences even for “run-of-the-mill”
cases. Id. at 11-12 (quoting United States v. Dorvee, 616 F.3d
174, 186 (2d Cir. 2010)). In support of his argument, Fry
presented evidence through which he sought to show that his
enhancements for images involving prepubescent minors, for

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the number of images, for use of a computer, and for
sadomasochistic images applied in the vast majority of cases.
As a result, Fry contends, the district court should have varied
downward from the child-pornography Guidelines.
None of Fry’s arguments, however, supports the
conclusion that a district court’s decision to agree with the
Guidelines constitutes an abuse of discretion. It is true that
several courts of appeals have allowed district courts to vary
downward from the child-pornography Guidelines based on
policy disagreements with those Guidelines. See United States
v. Henderson, 649 F.3d 955, 960, 963 (9th Cir. 2011); Dorvee,
616 F.3d at 188; United States v. Grober, 624 F.3d 592, 609,
611 (3d Cir. 2010); United States v. Stone, 575 F.3d 83, 89 (1st
Cir. 2009). None of those courts, however, require a district
court to disagree with the Guidelines. In fact, several of our
sister circuits have emphasized that district courts may choose
to agree with the Guidelines on policy grounds. See
Henderson, 649 F.3d at 964; Grober, 624 F.3d at 609; Stone,
575 F.3d at 90, 93. We similarly conclude that, even if a district
court retains discretion to vary from the child-pornography
Guidelines based on a policy disagreement with them, a district
court does not necessarily abuse its discretion by agreeing with
(and applying) those Guidelines.
Here, the district court’s statements at sentencing evidence
the judge’s agreement with the policy behind the Guidelines.
The court recognized that it could vary outside the Guidelines
range. The court emphasized, however, that the children in
child-pornography videos are “true victims” whose
“victimization follows them the rest of their lives,” which, to
the court, was “the reason why, in a nutshell, Congress has set
these very serious, and sometimes, you could even argue,
severe sentences for these types of actions here.” Sentencing
Hr’g Tr. at 24. The court thus excercised its discretion to agree

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with the policy behind the Guidelines, stating, “I must give a
sentence that reflects the seriousness of the conduct; a
Guideline Range sentence does that.” Id. The court also
explained that, even absent the Guidelines enhancements, the
“very serious” nature of Fry’s conduct remained a central
consideration in its analysis. See id. at 12-13. In particular, as
noted above, Fry was “bartering . . . for a new victim to be
created.” See id. at 23.
The district court could reasonably conclude that the
sentence reflected “the seriousness of the conduct” and would
protect the public by deterring Fry and “others who may be
inclined in doing similar kinds of things.” See id. at 24-25. Fry
has thus failed to show that the district court abused its
discretion in imposing a sentence in the middle of the
Guidelines range.
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For the foregoing reasons, we affirm the district court’s
judgment.
So ordered.

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