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United States v. Fry

United States Court of Appeals, District of Columbia Circuit

March 31, 2017

United States of America, Appellee
v.
Daniel Fry, Appellant

          Argued November 21, 2016

         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

          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: 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 ...


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