United States of America v. William Malloy

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 06-2772
UNITED STATES OF AMERICA
v.
WILLIAM MALLOY,
Appellant
Appeal from the Judgment of Sentence entered on May 11, 2006 at
3:05-CR-495 by the United States District Court
for the Middle District of Pennsylvania
District Judge: Honorable Thomas I. Vanaskie
Submitted under Third Circuit LAR 34.1(a)
October 23, 2007
Before: FISHER, ALDISERT and GREENBERG, Circuit Judges
(Filed: October 24, 2007)
OPINION
ALDISERT, Circuit Judge
This appeal by William Malloy requires us to decide whether the United States
District Court for the Middle District of Pennsylvania adequately articulated its

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consideration of the factors set forth in 18 U.S.C. § 3553(a) when it sentenced Malloy to
27 months of imprisonment. On appeal, Malloy contends that the District Court failed to
meaningfully consider the § 3553(a) factors, letters submitted on his behalf and an
independent psychiatric report. We will affirm.
I.
The parties are familiar with the facts and proceedings before the District Court, so
we will revisit them only briefly. In 2002, the FBI and local law enforcement officials in
Dallas, Texas began an investigation into the distribution of child pornography over the
Internet. During the course of the investigation, officials obtained e-mail addresses and
credit card records used to gain access to websites distributing child pornography, and
some of those records led authorities to a man named Bill Malloy at an address in
Honesdale, Pennsylvania. On October 15, 2003, FBI agents traveled to that address and
met with Malloy. At the meeting, Malloy admitted to having received child pornography
via the Internet and provided authorities with approximately 70 sexually explicit images
of prepubescent minors that he had printed from the Internet. Malloy also provided the
agents with a written statement of his involvement with child pornography.
On September 21, 2004, Malloy was arrested by the FBI and charged with
receiving child pornography in violation of 18 U.S.C. § 2252A(a)(2). On July 21, 2005,
Malloy pleaded guilty to receiving child pornography. The presentence report stated that
the receiving child pornography charge carried a mandatory minimum sentence of five
years of imprisonment. Because this mandatory minimum was not contemplated by either

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of the parties, Malloy was given the opportunity to withdraw his plea and enter a plea to
an information charging him with possession of child pornography in violation of 18
U.S.C. § 2252A(a)(5), which carried no mandatory minimum sentence.
Thereafter, on January 13, 2006, Malloy withdrew his prior plea, waived his right
to an indictment and entered a plea of guilty to the information. At the May 11, 2006
sentencing hearing, the District Court sentenced Malloy to the minimum sentence
provided by the advisory Sentencing Guidelines, 27 months of imprisonment.
II.
Generally, “a court of appeals gives deference to a district court’s sentencing
determinations and thus reviews sentences on an abuse of discretion basis.” United States
v. Lloyd, 469 F.3d 319, 321 (3d Cir. 2006). When a defendant fails to raise an objection
to the sentence before the district court, however, our review of the sentence is for plain
error. Id. (“Nevertheless, insofar as [the defendant] is advancing contentions that he did
not preserve in the district court, our review is confined by the exacting plain error
standards.”). Before us, Malloy complains that the District Court failed to perform a
meaningful consideration of the § 3553(a) factors, letters submitted on his behalf, and an
independent psychiatric report when it sentenced him to 27 months of imprisonment.
Because his argument made to this Court was not raised before the District Court, see
sup. app. 27-30, we will review it for plain error.
To succeed under the plain error standard, Malloy bears the burden of showing that
“(1) an error was committed; (2) the error was plain, that is, clear and obvious; and (3) the

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1 Section 3553(a) provides:
(a) Factors to be considered in imposing a sentence. – The court shall
impose a sentence sufficient, but not greater than necessary, to
comply with the purposes set forth in paragraph (2) of this
subsection. The court, in determining the particular sentence to be
imposed, shall consider –
(1) the nature and circumstances of the offense and the
history and characteristics of the defendant;
(2) the need for the sentence imposed –
(A) to reflect the seriousness of the offense, to
promote respect for the law, and to provide just
punishment for the offense;
(B) to afford adequate deterrence to criminal
conduct;
(C) to protect the public from further crimes of the
defendant; and
(D) to provide the defendant with needed
educational or vocational training, medical care,
or other correctional treatment in the most
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error affected the defendant’s substantial rights[,] . . . [and][i]n cases where the first three
elements are satisfied, an appellate court may exercise its discretion to order such a
correction only if the error[] seriously affects the fairness, integrity, or public reputation
of judicial proceedings.” United States v. Dixon, 308 F.3d 229, 234 (3d Cir. 2002)
(citations and quotations omitted). An error affects substantial rights if the error was
prejudicial to the defendant and “affected the outcome of the district court proceedings.”
United States v. Olano, 507 U.S. 725, 732 (1993).
III.
Malloy contends that the District Court erred by failing to meaningfully consider
the factors relevant to sentencing, as articulated in 18 U.S.C. § 3553(a),1 letters submitted

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effective manner;
(3) the kinds of sentences available;
(4) the kinds of sentence and the sentencing range
established for –
(A) the applicable category of offense committed by
the applicable category of defendant as set forth
in the guidelines –
(i) issued by the Sentencing Commission
pursuant to section 994(a)(1) of title 28,
United States Code, subject to any
amendments made to such guidelines by
act of Congress (regardless of whether
such amendments have yet to be
incorporated by the Sentencing
Commission into amendments issued
under section 994(p) of title 28); and
(ii) that, except as provided in section
3742(g), are in effect on the date the
defendant is sentenced; or
(B) in the case of a violation of probation or
supervised release, the applicable guidelines or
policy statements issued by the Sentencing
Commission pursuant to section 994(a)(3) of
title 28, United States Code, taking into account
any amendments made to such guideline or
policy statements by act of Congress (regardless
of whether such amendments have yet to be
incorporated by the Sentencing Commission
into amendments issued under section 994(p) of
title 28);
(5) any pertinent policy statement –
(A) issued by the Sentencing Commission pursuant
to section 994(a)(2) of title 28, United States
Code, subject to any amendments made to such
policy statement by act of Congress (regardless
of whether such amendments have yet to be
incorporated by the Sentencing Commission
into amendments issued under section 994(p) of
title 28); and
5

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(B) that, except as provided in section 3742(g), is in
effect on the date the defendant is sentenced.
(6) the need to avoid unwarranted sentence disparities
among defendants with similar records who have been
found guilty of similar conduct; and
(7) the need to provide restitution to any victims of the
offense.
18 U.S.C. § 3553(a).
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on his behalf by friends and family, and an independent psychiatric report concluding that
Malloy did not meet diagnostic requirements for pedophilia or anti-social personality
disorder. This Court has previously considered a similar claim of failure to consider the
appropriate § 3553(a) factors, and the legal precept applicable to Malloy’s claim is
settled. In United States v. Cooper, 437 F.3d 324 (3d Cir. 2006), we stated:
The record must demonstrate that the court gave meaningful
consideration to the § 3553(a) factors. The court need not
discuss every argument made by a litigant if an argument is
clearly without merit. Nor must a court discuss and make
findings as to each of the § 3553(a) factors if the record
makes clear the court took the factors into account in
sentencing.
Id. at 329 (internal citations omitted). Nothing in the teachings of United States v.
Booker, 543 U.S. 220 (2005), or elsewhere requires a district court to state on the record
that it has explicitly considered each of the § 3553(a) factors or to explicitly record its
consideration of each factor. Cooper, 437 F.3d at 329.
At sentencing, the District Court provided the following statement regarding its
reasons for imposing a sentence of 27 months of imprisonment:

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You see, it puts a cloud on everything you’ve done, and what
baffles me is that you don’t seem to understand that.
Sometimes you have to be concerned about perception, and
when you have somebody who has been as active as you have
been in the community with youth sports and particularly girls
sports, then, to be accessing child pornography and then
printing it out and retaining it involving pre-pubescent
children, it’s a horrible, horrible, thing.
You received an award from the Chamber of
Commerce. Is that the image of the person they would want to
honor? Don’t you have an obligation, a duty to live up to the
faith that people have shown in you, the parents who put their
children in your care not to do something that would suggest a
problem? I think you do, I think you have an absolute duty.
Yes, you did great things for the children of the community,
but working with children is also a privilege, and you can’t
destroy that. What you do makes it harder for others to do it,
what you did in this particular matter, because people will
question others’ motives and they’ll question your motives,
rightfully so.
. . . My obligation is to start with the guidelines which
impose a prison term of 27 to 33 months in this case, and then
to look at the factors in 3553(a) and determine what a
reasonable sentence is under all the circumstances.
As [defense counsel] indicates, I’m to consider the
nature and circumstances of the offense. Well, the nature of
the offense is a serious one. These aren’t victimless crimes.
Those children depicted in those images are victimized,
horribly so. You may not have produced them, but you helped
create the demand that sustains those matters. You may not
have paid for these particular images, but you retained then,
for reasons that you, yourself, cannot articulate to me. But it’s
very disturbing to me that this was simply not surfing a
website and seeing what was on the web, this was actual
download of horrible images.
The history and characteristics of the Defendant. This
has been a matter that baffles me because, on the one hand, I
agree with [defense counsel], you have done outstanding
community service, and on the other hand, you have taken
that and turned it around. I have wrestled with this. On the
one hand, I’d like to provide credit for the community service

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that you have provided, on the other hand, I know that you
have destroyed – you’ve undermined confidence in others that
try to provide this community service by engaging in the
conduct in which you engaged.
I have to impose a sentence that reflects the
seriousness of the offense and promote[s] respect for the law
and provide[s] just punishment. . . .
To afford adequate deterrence to criminal conduct. I
have no reason to disbelieve Dr. Berger that you do not pose a
threat to the safety of any person or a threat of recidivism, but
I have to look at the public, in general, I have to look at others
that engage in this conduct, and the only way to deter others is
to send a significant message by the punishment that’s
imposed in this particular case.
Finally, I’m to protect the public from further crimes. I
don’t think that requires any lengthier sentence than called for
by the guidelines, but I do find that, under the circumstances
of this case, a sentence of 27 months is appropriate. To not
impose a sentence within the guideline range, in my
judgment, would not be a reasonable sentence under the
circumstances. And I’d note, when you pled guilty, you
agreed that the sentence within the guideline range would be a
reasonable sentence under the circumstances, while reserving
the right to argue for a lesser sentence.
I made the point that of the approximate[ly] 50 letters
received, most of those, 36 of those were received before the
entry of a guilty plea. I think that’s a significant factor. And
you were described as a true humanitarian in that letter, but a
true humanitarian does not do what you did in this particular
matter. So for those reasons, as I said, child pornography is an
extremely serious matter, and the only way to attack it is not
only to attack the distributors, yes, they need to be attacked,
but also to snuff out the demand, and the only way to snuff
out demand is by imposing an appropriate sentence in this
particular case.
So having taken into account all of the facts and
circumstances and considering the sentencing guidelines, as
well as the factors in 18 United States Code Section 3553(a), I
will impose a prison term of 27 months in this particular case.
Sup. App. 22-26.

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This statement explicitly addressed several of the § 3553(a) factors, including “the
nature and circumstances of the offense,” 18 U.S.C. § 3553(a)(1); “the history and
characteristics of the defendant,” id.; “the need for the sentence imposed to reflect the
seriousness of the offense, to promote respect for the law, and to provide just
punishment,” id. § 3553(a)(2)(A); “the need for the sentence imposed . . . to afford
adequate deterrence to criminal conduct,” id. § 3553(a)(2)(B); “the need for the sentence
imposed . . . to protect the public from further crimes of the defendant,” id. §
3553(a)(2)(C); and “the . . . sentencing range established for the applicable category of
offense committed by the applicable category of defendant as set forth in the guidelines
issued by the Sentencing Commission . . . ,” id. § 3553(a)(4)(A)(i). In addition, the
statement specifically noted the District Court’s consideration of the letters submitted on
Malloy’s behalf and the independent psychiatric evaluation conducted by Dr. Berger.
That the District Court “did not give a fuller explanation certainly could not rise to
the level of plain error or, indeed, any error at all.” Lloyd, 469 F.3d at 325-326. Indeed, in
this case, the District Court gave a thoughtful and detailed statement of its reasons for
imposing its particular sentence, and this statement tracked the framework established in
§ 3553(a). Even though the District Court did not explicitly address each § 3553(a) factor,
it established a record demonstrating its meaningful consideration of them. We are
satisfied that the District Court properly considered the § 3553(a) factors, the letters
submitted on Malloy’s behalf and the independent psychiatric evaluation. We thus
conclude that the District Court did not err when it sentenced Malloy to 27 months of

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imprisonment.
* * * * *
We have considered all contentions presented by the parties and conclude that no
additional discussion is necessary.
The judgment of the District Court will be affirmed.

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