United States v. Gaffney-Kessell, 1st Cir. (2014)

United States Court of Appeals
For the First Circuit
No. 13-2023
UNITED STATES,
Appellee,
v.
PATRICK GAFFNEY-KESSELL
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE
[Hon. John A. Woodcock, Jr., U.S. District Judge]
Before
Lynch, Chief Judge,
Stahl and Kayatta,
Circuit Judges.
Charles Allan Hope, with whom Cunha & Holcomb, P.C. were on
brief, for appellant.
Margaret D. McGaughey, Assistant United States Attorney, with
whom Thomas E. Delahanty II, United States Attorney, was on brief,
for appellee.
November 18, 2014
STAHL,
Circuit
Judge.
Defendant-Appellant
Patrick
Gaffney-Kessell pleaded guilty to travel with intent to engage in

criminal sexual activity, in violation of 18 U.S.C. 2423(b).
Although he lodged no objection to the presentence report or during
the sentencing hearing, he now appeals his sentence, challenging
the application of an enhancement for having engaged in "a pattern
of activity involving prohibited sexual conduct," U.S. Sentencing
Guidelines
Manual
4B1.5(b)(1),
reasonableness of his sentence.

I.
as
well
as
the
overall
We affirm.
Facts & Background
As this appeal follows the entry of a guilty plea, we

draw the facts from the uncontested presentence report (PSR) and
the transcript of the sentencing hearing. United States v. Nguyen,
618 F.3d 72, 73 (1st Cir. 2010).
In October 2010, Gaffney-Kessell, then twenty-six years
old,
began
Facebook.
communicating
Over
the
with
ensuing
Jane
months,
Doe,1
then
thirteen,
Gaffney-Kessell
and
on
Doe
exchanged numerous e-mails and text messages, spoke on the phone,

and engaged in instant messaging. Many of these conversations were
sexual in nature.
Although Doe had advised Gaffney-Kessell of her
age, he nonetheless sent her lewd photographs of himself, including

pictures of him masturbating, and described sexual activities he
wished to engage in with her.
1
A pseudonym.
-2-
On
January
12,
2011,
Gaffney-Kessell
traveled
approximately ten hours from Maine to Pennsylvania, where Doe

lived.
He rented a motel room near Doe's home and spent four or
five days there.
When Doe refused to meet him at the motel,
Gaffney-Kessell drove to her home and lingered in front of the

house. Frightened, Doe told her parents about Gaffney-Kessell and,
from the record before us, it appears that she asked him to leave.
In some manner again unclear from the record, the police
became involved in the matter.
Gaffney-Kessell admitted to police
during an interview that his motive for the trip to Pennsylvania

was to have sex with Doe, and that he would have done so had she
agreed to meet him at the motel.
Further investigation uncovered
evidence that Gaffney-Kessell had engaged in online and/or sexual

relationships
with
at
least
two
other
underage
females.
Allegations that he had had sexual intercourse with one of those

females, then fifteen years old, on at least two occasions formed
the basis of a Maine state charge against him for sexual abuse of
a minor.
A federal information subsequently was filed in this
case, charging Gaffney-Kessell with travel with intent to engage in
criminal sexual activity, in violation of 18 U.S.C. 2423(b).
Represented by counsel, he waived indictment and pleaded guilty to
-3-
the information.2
He lodged no written objection to the sentence
recommendations contained in the ensuing PSR, discussed below.3

At the sentencing hearing, Gaffney-Kessell reiterated his
guilt and confirmed that the version of events described in the PSR
was accurate.
Although defense counsel made a general plea for
leniency, he did not recommend a specific sentence, as GaffneyKessell had instructed him not to do so.
Gaffney-Kessell told the
court that he "wish[ed] to make no request as far as [his]

sentencing [was] concerned," and represented, both personally and
through counsel, that he believed that any sentence imposed would
be just and appropriate.
In sentencing, the district court took note of statements
from Gaffney-Kessell's family members and therapist, which attested
to his own history of sexual abuse as a child.
The court observed
that other relevant factors included the age discrepancy between

Gaffney-Kessell and Doe; his use of the Internet to send pictures
to Doe, which "is associated with efforts on behalf of an older
male to groom a young victim"; his history of sexual conduct with
There was no plea agreement.
The record before us reflects that defense counsel raised

one objection to the presentence report. Although the matter was
resolved in due course, the nature of the objection is unclear.
However, Gaffney-Kessell does not contest the government's
characterization of it as "an unrelated objection . . . that was
cured by revisions."
-4-
underage girls; and the fact that he "crossed the line . . . from
fantasy to reality."
In
accordance
with
the
PSR's
recommendations,
the
district court calculated Gaffney-Kessell's base offense level at

24, per section 2G1.3(a)(4) of the U.S. Sentencing Guidelines
Manual. The court then applied a two-level enhancement for his use
of
computer
in
the
commission
of
the
offense,
U.S.S.G.
2G1.3(b)(3)(B), and a five-level enhancement for his "pattern of

activity
involving
prohibited
sexual
conduct,"
U.S.S.G.
4B1.5(b)(1), before decreasing his offense level by three for his

acceptance of responsibility, U.S.S.G. 3E1.1.
The five-level
enhancement was based on Gaffney-Kessell's alleged sexual contact

with the fifteen-year-old girl, which was then the subject of the
pending Maine state charge.4,5
The court ultimately sentenced
Gaffney-Kessell to seventy-eight months in prison at the lowest

end of the guidelines range plus five years of supervised
The application notes to the sentencing guidelines define

"a pattern of activity involving prohibited sexual conduct" as
comprising at least two separate instances of prohibited sexual
conduct with a minor.
U.S.S.G. 4B1.5 cmt. n.4(B)(I).
The
application notes explain further that "[a]n occasion of prohibited
sexual conduct may be considered . . . without regard to whether
the occasion (I) occurred during the course of the instant offense;
or (II) resulted in a conviction for the conduct that occurred on
that occasion." Id. cmt. n.4(B)(ii).
5
Gaffney-Kessell pleaded guilty to the Maine charge shortly

after sentencing in this case.
-5-
release.
Gaffney-Kessell did not object at the sentencing hearing
but nonetheless appeals from the imposition of the sentence.

II.
Analysis
Gaffney-Kessell argues on appeal that the five-level

sentence enhancement based on "a pattern of activity involving
prohibited sexual conduct" was improper, and that the district
court abused its discretion in failing to impose a sentence below
the guidelines range. Before turning to the merits, we address the
government's contention that these claims have been waived.
The government asserts that Gaffney-Kessell affirmatively
waived,
rather
than
merely
forfeited,
his
objections
to
the
sentence imposed. The government grounds this argument in GaffneyKessell's failure to file a written objection to the recommended
sentence in the PSR, his failure to object either to the PSR's
findings or the district court's guidelines computations at the
sentencing hearing, and both his and defense counsel's avowal that
whatever sentence imposed would be fair and appropriate.
Whether an objection has been waived or simply forfeited
affects the scope of our appellate review.
A litigant effects a
waiver by intentionally relinquishing or abandoning a known right.

United States v. Olano, 507 U.S. 725, 733 (1993).
Doing so means
that that issue "ordinarily cannot be resurrected on appeal."

United States v. Rodriguez, 311 F.3d 435, 437 (1st Cir. 2002).
By
contrast, forfeiture refers not to affirmative conduct but rather
-6-
to a "failure to make the timely assertion of a right."

U.S. at 733; Rodriguez, 311 F.3d at 437.
Olano, 507
A forfeited issue still
may be reviewed on appeal, albeit for plain error. Olano, 507 U.S.
at 73334; Rodriguez, 311 F.3d at 437.
The conduct of both Gaffney-Kessell and his attorney in
this case "might well constitute a waiver."
United States v.
Martinez-Vargas, 321 F.3d 245, 249 (1st Cir. 2003).
Beyond simply
not objecting to the individual sentence enhancements or to the

overall sentence imposed, defense counsel affirmatively declined to
make a sentence recommendation.
Counsel noted that his client
"ha[d]
[him]
specifically
recommendation,"
instructed
believing
that
not
"whatever
impose[d would] be just and appropriate."

made a statement to the same effect.
to
ask
sentence
for
the
any
court
Gaffney-Kessell himself
These actions ring not of
"oversight, inadvertence, or neglect in asserting a potential

right," United States v. Eisom, 585 F.3d 552, 556 (1st Cir. 2009),
but rather of a deliberate course of conduct.
However, it is not necessary to resolve the question of
waiver definitively because it is evident that Gaffney-Kessell's
claims do not rise to the level of plain error in any event.
Cf.
Martinez-Vargas, 321 F.3d at 24950 (assuming without deciding that

forfeiture rather than waiver occurred and finding no plain error).
Gaffney-Kessell first attacks the five-level sentence enhancement
imposed, per U.S.S.G. 4B1.5, after the court considered the
-7-
pending state charge for a separate offense and found that he had
engaged in a pattern of activity involving prohibited sexual
conduct.
directs
He argues that the Sentencing Reform Act specifically

the
Sentencing
Commission
to
promulgate
guidelines
responsive to the nature of "the offense," 28 U.S.C. 994(c)

(emphasis added), and that the guidelines violate this mandate
insofar as they authorize sentencing courts to consider "relevant
conduct," including other uncharged, dismissed, or pending offenses
beyond the offense of conviction.6
Although Gaffney-Kessell's brief catalogs a plethora of
dissenting opinions and academic articles criticizing the "relevant
conduct" provision of the guidelines generally, it fails either to
acknowledge or account for controlling precedent, which dictates
the result of his particular challenge to U.S.S.G. 4B1.5(b). The
Supreme Court has held that the guidelines' grant of discretion to
sentencing judges to consider a defendant's other relevant conduct,
including uncharged or unconvicted conduct, is consistent with both
Gaffney-Kessell challenges the "relevant conduct" guideline

broadly, in apparent reference to section 1B1.3 of the U.S.
Sentencing Guidelines Manual, titled "Relevant Conduct (Factors
that Determine the Guideline Range)." However, section 1B1.3(b)
expressly notes that "factors in Chapters Four and Five that
establish the guideline range shall be determined on the basis of
the conduct and information specified in the respective
guidelines." Thus, the specific guideline relevant to GaffneyKessell's argument is section 4B1.5, which governs repeat and
dangerous sex offenders against minors. Application note 4(b)(ii)
of that guideline makes clear that other instances of prohibited
sexual conduct can be considered in sentencing, regardless of
whether such conduct resulted in a conviction.
-8-
the Sentencing Reform Act and principles of due process, provided

that the underlying facts are found by a preponderance of the
evidence. United States v. Watts, 519 U.S. 148, 15356 (1997). It
follows that there is no comparable statutory or constitutional
impediment
to
considering
specific
category
of
"relevant
conduct," i.e., instances of prohibited sexual conduct, in applying

U.S.S.G. 4B1.5(b) to a defendant convicted of a "covered sex
crime."
Indeed, we have affirmed the consideration of unconvicted
sexual conduct in the context of a guideline virtually identical to

the one at issue here, U.S.S.G. 2G2.2(b)(5), which authorizes a
five-level enhancement "[i]f the defendant engaged in a pattern of
activity involving the sexual abuse or exploitation of a minor."
United States v. Woodward, 277 F.3d 87, 91 (1st Cir. 2002); see
United States v. Clark, 685 F.3d 72, 79 (1st Cir. 2012).
circuits,
too,
have
affirmed
the
application
of
the
Other
precise
guideline at issue here, based on evidence of prior instances of

unconvicted
sexual
conduct.
See,
e.g.,
United
States
v.
Rothenberg, 610 F.3d 621, 625 n.5, 627 (11th Cir. 2010); United
States v. Phillips, 431 F.3d 86, 93 (2d Cir. 2005).
Moreover, to the extent that Gaffney-Kessell contends
that
guideline
4B1.5(b)
impermissibly
broadens
the
statutory
reference to "the offense," 28 U.S.C. 994(c), beyond the offense

of conviction, his argument is undercut by the plain language of
18 U.S.C. 3661.
That provision clearly states that "[n]o
-9-
limitation shall be placed on the information concerning the

background, character, and conduct of a person convicted of an
offense which a court of the United States may receive and consider
for the purpose of imposing an appropriate sentence."
Thus, there
was no error, let alone plain error, in the district court's

application of the five-level enhancement, based on its finding
that the offense of conviction, along with the conduct underlying
the pending state charge, constituted a pattern of prohibited
sexual conduct.
Gaffney-Kessell also challenges the overall sentence
imposed as "greater than necessary" for the purpose of punishment.
See 18 U.S.C. 3553(a).
Particularly in light of his own history
of sexual abuse and the progress he had made in therapy by the time
of
sentencing,
he
argues
that
the
district
court
improperly
declined to impose a sentence below the guidelines range.
This
claim, too, falls short of the plain-error hurdle, as there was "a
plausible sentencing rationale and a defensible result," rendering
the sentence substantively reasonable.
United States v. Ayala-
Vazquez, 751 F.3d 1, 32 (1st Cir. 2014) (internal quotation marks

omitted).
The district court noted that it had considered each of
the factors set forth in 3553(a); it properly weighed evidence of

Gaffney-Kessell's background, including evidence of his "horrible,
traumatic
youth,"
against
the
circumstances
of
the
offense,
ultimately choosing a sentence at the lowest end of the guidelines
-10-
range.
Gaffney-Kessell
has
not
"adduce[d]
fairly
powerful
mitigating reasons [that] persuade us that the district court was

unreasonable," as he must in challenging a sentence within a
properly calculated guidelines range.
United States v. Clogston,
662 F.3d 588, 59293 (1st Cir. 2011) (internal quotation marks
omitted).
III.
As
Gaffney-Kessell
Conclusion
has
demonstrated
justifying resentencing, we AFFIRM his sentence.
-11-
no
plain
error

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United States Court of Appeals

For the First Circuit

APPEAL FROM THE UNITED STATES DISTRICT COURT

November 18, 2014

Gaffney-Kessell pleaded guilty to travel with intent to engage in

reasonableness of his sentence.

Facts & Background

As this appeal follows the entry of a guilty plea, we

exchanged numerous e-mails and text messages, spoke on the phone,

Although Doe had advised Gaffney-Kessell of her

age, he nonetheless sent her lewd photographs of himself, including

approximately ten hours from Maine to Pennsylvania, where Doe

He rented a motel room near Doe's home and spent four or

five days there.

When Doe refused to meet him at the motel,

Gaffney-Kessell drove to her home and lingered in front of the

Gaffney-Kessell admitted to police

during an interview that his motive for the trip to Pennsylvania

Further investigation uncovered

evidence that Gaffney-Kessell had engaged in online and/or sexual

Allegations that he had had sexual intercourse with one of those

He lodged no written objection to the sentence

recommendations contained in the ensuing PSR, discussed below.3

Although defense counsel made a general plea for

Gaffney-Kessell told the

court that he "wish[ed] to make no request as far as [his]

The court observed

that other relevant factors included the age discrepancy between

There was no plea agreement.

The record before us reflects that defense counsel raised

district court calculated Gaffney-Kessell's base offense level at

2G1.3(b)(3)(B), and a five-level enhancement for his "pattern of

4B1.5(b)(1), before decreasing his offense level by three for his

enhancement was based on Gaffney-Kessell's alleged sexual contact

The court ultimately sentenced

Gaffney-Kessell to seventy-eight months in prison at the lowest

The application notes to the sentencing guidelines define

Gaffney-Kessell pleaded guilty to the Maine charge shortly

Gaffney-Kessell did not object at the sentencing hearing

but nonetheless appeals from the imposition of the sentence.

Gaffney-Kessell argues on appeal that the five-level

waiver by intentionally relinquishing or abandoning a known right.

that that issue "ordinarily cannot be resurrected on appeal."

contrast, forfeiture refers not to affirmative conduct but rather

to a "failure to make the timely assertion of a right."

A forfeited issue still

Martinez-Vargas, 321 F.3d 245, 249 (1st Cir. 2003).

not objecting to the individual sentence enhancements or to the

Counsel noted that his client

impose[d would] be just and appropriate."

These actions ring not of

"oversight, inadvertence, or neglect in asserting a potential

Martinez-Vargas, 321 F.3d at 24950 (assuming without deciding that

He argues that the Sentencing Reform Act specifically

responsive to the nature of "the offense," 28 U.S.C. 994(c)

Gaffney-Kessell challenges the "relevant conduct" guideline

the Sentencing Reform Act and principles of due process, provided

conduct," i.e., instances of prohibited sexual conduct, in applying

Indeed, we have affirmed the consideration of unconvicted