United States Court of Appeals, District of Columbia Circuit
November 21, 2016
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.
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.
Srinivasan Circuit Judge.
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.
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
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.
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
district court sentenced Fry to 108 months of imprisonment,
to be followed by 120 months of supervised release. Fry now
appeals his sentence.
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 ...