United States v. DeSilva, No. 09-2988-cr (2d Cir. July 28, 2010) (per curiam)
In this child pornography case, the sentencing court made a clearly erroneous finding of fact in the defendant’s favor. On the government’s appeal, the circuit vacated and remanded.
DeSilva was charged only child pornography offenses, but in the course of the investigation admitted to law enforcement officers that he had sexually abused a friend’s child for more than two years. As part of his bail application, which was unsuccessful, he submitted a psychologist’s report that indicated that if DeSilva were released to his parents and tightly supervised there was little chance that he would abuse another child.
DeSilva ultimately pled guilty to distributing child pornography. His sentencing range was 235 to 240 months’ imprisonment, and he faced a 60-month mandatory minimum. The district court imposed a below-Guideline sentence of 132 months, citing several factors, including the psychologist’s “opinion” that DeSilva was “not a danger to the community.”
The circuit agreed that the district court’s reliance on the bail report to find that DeSilva was not a danger to the community was clear error. The report’s findings were conditioned on the premise that DeSilva would be released to his parents. What was relevant for sentencing was whether DeSilva would pose a large danger to society on release from prison; the psychologist’s opinion thus had “only minimal relevance” to whether DeSilva would be likely to molest another child in the future.