11-5097-cr
United States of America v. Cory Ketcham

                           UNITED STATES COURT OF APPEALS
                               FOR THE SECOND CIRCUIT

                                       SUMMARY ORDER

Rulings by summary order do not have precedential effect. Citation to a summary order filed on or
after January 1, 2007, is permitted and is governed by Federal Rule of Appellate Procedure 32.1 and
this court’s Local Rule 32.1.1. When citing a summary order in a document filed with this court, a
party must cite either the Federal Appendix or an electronic database (with the notation “summary
order”). A party citing a summary order must serve a copy of it on any party not represented by
counsel.

    At a stated Term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan United States Courthouse, at 500 Pearl Street, in the City of New York,
on the 4th day of January, two thousand thirteen.

Present: ROBERT A. KATZMANN,
         BARRINGTON D. PARKER,
         RICHARD C. WESLEY,
                     Circuit Judges.
____________________________________________________________

UNITED STATES OF AMERICA

                           Appellee,


                           -v-                           No. 11-5097-cr

CORY J. KETCHAM,

                     Defendant-Appellant.
____________________________________________________________

For Appellee:                     Lisa M. Fletcher, Assistant United States Attorney, for Richard
                                  S. Hartunian, United States Attorney for the Northern District
                                  of New York, New York, N.Y.

For Defendant-Appellant:          Lisa A. Peebles and James P. Egan, Syracuse, N.Y.
      Appeal from the United States District Court for the Northern District of New York
(Suddaby, J.).

       ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,

and DECREED that the judgment of the district court be and hereby is AFFIRMED.

       Defendant-Appellant Cory Ketcham appeals from a November 21, 2011, judgment of the

United States District Court for the Northern District of New York (Suddaby, J.), entered

following the defendant’s plea of guilty, sentencing him principally to sixty years of

imprisonment and a life term of supervised release. We assume the parties’ familiarity with the

underlying facts and procedural history of this case.

       We review a district court’s sentencing decision for unreasonableness under an abuse-of-

discretion standard. Gall v. United States, 

, 51 (2007). Employing that standard, we

“must first ensure that the district court committed no significant procedural error . . . [and] then

consider the substantive reasonableness of the sentence imposed.” Id. Ketcham contends that

the district court erred both procedurally and substantively.

       Ketcham argues that the district court committed procedural error because it failed to

apply U.S.S.G § 5G1.2(d)1 when calculating his Guidelines range, resulting in a Guidelines

range of lifetime imprisonment instead of ninety years of imprisonment. Because Ketcham did

not object below to the court’s failure to apply the correct section of the Sentencing Guidelines,

we apply plain error review. United States v. Wagner-Dano, 

, 88 (2d Cir. 2012).

Ketcham must demonstrate that: “(1) there is an error; (2) the error is clear or obvious, rather


       1
         Ketcham has misidentified the relevant Guidelines section at U.S.S.G. § 5G1.1(a),
which applies where a defendant is sentenced on a single count of conviction. United States
Sentencing Guidelines Section 5G1.2 applies where, as here, a defendant is sentenced on
multiple counts of conviction.

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than subject to reasonable dispute; (3) the error affected the appellant’s substantial rights, which

in the ordinary case means it affected the outcome of the district court proceedings; and (4) the

error seriously affect[ed] the fairness, integrity or public reputation of judicial proceedings.”

United States v. Marcus, 

, 2164 (2010) (internal quotation marks omitted).

       We turn directly to the latter two requirements. Ketcham has not and cannot demonstrate

that any error affected his substantial rights. To do so, Ketcham must show that the error was

“‘prejudicial,’ which means that there must be a reasonable probability that the error affected the

outcome of the [proceeding].” Id. “[I]t is the defendant rather than the Government who bears

the burden of persuasion with respect to prejudice,” United States v. Olano, 

, 734

(1993), and Ketcham cannot carry that burden. Ketcham was thirty-seven at the time of

sentencing. Consequently, there is no “reasonable probability” that the difference between a

ninety-year and a lifetime Guidelines sentence affected the final sentence imposed by the district

court. See Marcus, 130 S. Ct. at 2164 (rejecting a standard finding plain error whenever there is

“any possibility, no matter how unlikely,” that the error affected the outcome of the proceeding).

       Relatedly, Ketcham has not demonstrated that any error seriously affected the integrity,

fairness, or reputation of judicial proceedings. The Supreme Court has “suggested that, in most

circumstances, an error that does not affect the [outcome] does not significantly impugn the

‘fairness,’ ‘integrity,’ or ‘public reputation’ of the judicial process.” Id. at 2166. “Given the tiny

risk” that the difference between a ninety-year and a lifetime Guidelines sentence affected the

ultimate sentence imposed on Ketcham, “a refusal to recognize such an error as a ‘plain error’

(and to set aside the [sentence]) is most unlikely to cast serious doubt on the ‘fairness,’

‘integrity,’ or ‘public reputation’ of the judicial system.” Id.


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       Ketcham has not demonstrated that the district court committed plain error when it

miscalculated his sentence pursuant to the United States Sentencing Guidelines. Consequently,

his claim of procedural error fails.

       Ketcham also contends that his sentence was substantively unreasonable. “At the

substantive stage of reasonableness review, an appellate court may consider whether a factor

relied on by a sentencing court can bear the weight assigned to it.” United States v. Cavera, 

, 191 (2d Cir. 2008) (en banc). However, “we do not consider what weight we would

ourselves have given a particular factor. Rather, we consider whether the factor, as explained by

the district court, can bear the weight assigned it under the totality of circumstances in the case.”

Id. (citation omitted). Review for substantive unreasonableness “provide[s] a backstop for those

few cases that, although procedurally correct, would nonetheless damage the administration of

justice because the standard imposed was shockingly high, shockingly low, or otherwise

unsupportable as a matter of law.” United States v. Rigas, 

, 123 (2d Cir. 2009).

None of the three arguments that Ketcham raises in support of the proposition that the sentence

imposed was substantively unreasonable establishes that this is one of those few cases.

       First, Ketcham contends that the district court did not take into account his state court

sentence for predatory sex assault against a child less than thirteen years old. At Ketcham’s

sentencing, defense counsel informed the district court that Ketcham was likely to be sentenced

to eighteen years to life for his state conviction. Ketcham argues that because he never

distributed the child pornography produced, the harm he caused was limited to that inflicted on

his daughter due to the sexual abuse. Ketcham contends that his federal sentence should have

been reduced to reflect the anticipated state sentence for the sexual abuse. However, assuming


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that the district court was required to consider a still-undecided state sentence, Ketcham has not

demonstrated that the district court did not take his state court conviction into consideration.

“[T]he law in this circuit is well established that, in the absence of record evidence suggesting

otherwise, we presume that a sentencing judge has faithfully discharged her duty to consider the

statutory factors.” United States v. Verkhoglyad, 

, 129 (2d Cir. 2008) (internal

quotation marks omitted). Ketcham points to no such record evidence here.

       Second, Ketcham contends that the district court placed too much significance on his

receipt, possession, and distribution of child pornography. He argues that “[b]y concentrating on

facts never admitted to by Ketcham, or found beyond a reasonable doubt by a jury, the court

committed substantive error.” Brief for Defendant-Appellant Cory Ketcham at 17. However,

Ketcham admitted to his long-term engagement in collecting, possessing, and distributing child

pornography when he pleaded guilty. He also waived any objection to these facts, which were

contained in the presentence report, by failing to object at the time of sentencing. United States

v. Jass, 

, 66 (2d Cir. 2009). Moreover, although the objected-to facts were not found

beyond a reasonable doubt by a jury, district courts have the “authority to determine sentencing

factors by a preponderance of the evidence.” United States v. Vaughn, 

, 525 (2d

Cir. 2005). That the district court did so here was not an abuse of discretion.

       Finally, Ketcham contends that the district court exaggerated the threat that he posed to

the community. Ketcham argues that the sex offender treatment he will receive while in prison,

together with the conditions of his supervised release, will eliminate any risk that he poses to his

daughter or other children as either an abuser or a recipient and distributor of child pornography.

While these measures may mitigate the danger that Ketcham poses to the community, it was not


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unreasonable of the district court to find that he still posed some danger. Moreover, the danger

posed by Ketcham to the community was but one of multiple factors considered by the district

court, and nothing in the record indicates that the district court afforded this factor undue weight.

See Cavera, 550 F.3d at 191 (“[W]e do not consider what weight we would ourselves have given

a particular factor. Rather, we consider whether the factor, as explained by the district court, can

bear the weight assigned it under the totality of circumstances in the case.” (citation omitted)).

       We have considered Ketcham’s remaining arguments and find them to be without merit.

For the reasons stated herein, the judgment of the district court is AFFIRMED.

                                                  FOR THE COURT:
                                                  CATHERINE O’HAGAN WOLFE, CLERK




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