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United States Court of Appeals, Second Circuit.

UNITED STATES OF AMERICA, Appellee, v. TODD GLENN DEAN, Defendant-Appellant


Decided: December 16, 2016

PRESENT: DENNIS JACOBS, JOSÉ A. CABRANES, BARRINGTON D. PARKER, Circuit Judges, FOR APPELLANT: DANIELLE C. WILD, Easton Thompson Kasperek Shiffrin, LLP, Rochester, New York (Lawrence L. Kasperek, on the brief). FOR APPELLEE: MONICA J. RICHARDS, forWilliam J. Hochul, Jr., United States Attorney for the Western District of New York.


Todd Glenn Dean appeals from the judgment of the United States District Court for the Western District of New York (Larimer, J.) imposing a prison sentence of 216 months, following a plea agreement. We assume the parties' familiarity with the underlying facts, the procedural history, and the issues presented for review. We affirm because the government did not violate its plea agreement with Dean and because Dean's sentence was not substantively unreasonable.

After indictment for attempting to entice a minor into sexual activity, Dean entered into a plea agreement with the government providing that: 1) it was the understanding of both parties that a Sentencing Guidelines range of 140 to 175 months applied; 2) Dean nonetheless understood that he was subject to a potential term of life imprisonment; 3) both the government and Dean had the right to argue for a sentence outside the Guidelines range; and 4) both the government and Dean had the right “to bring to the attention of the Court all information deemed relevant to a determination of the proper sentence in this action.” The plea deal did not refer to an enhancement for a “Repeat and Dangerous Sex Offender Against Minors” (U.S.S.G. § 4B1.5), apparently because it was overlooked. The enhancement would have dramatically increased Dean's Guidelines range.

After the plea, the Probation Department (“Probation”) prepared a Presentence Investigation Report (“PSR”) which did recommend that the § 4B1.5 enhancement apply, increasing Dean's Guidelines range to 235 to 293 months. After receiving the PSR, the government submitted sentencing briefs stating that the enhancement for repeat sex offenses against minors did not apply and the correct Guidelines range was therefore still 140 to 175 months, but requesting an above-Guidelines sentence of 240 months. The district court found that the enhancement applied, and Dean does not contest that it applies by its terms. The district court sentenced Dean below the resulting Guidelines range to 216 months.

The government did not breach its plea agreement by arguing for an above-Guidelines sentence; the plea agreement explicitly allowed the government to do so. Probation, not the government, argued that the § 4B1.5 enhancement should apply, and the government told the district court its position was that the § 4B1.5 enhancement did not apply. See United States v. Riera, 298 F.3d 128, 134 (2d Cir. 2002) (holding that the government's representations to the court that it was not seeking an upward departure suggested it had not breached the plea agreement). The government's brief argued for an above-Guidelines sentence on the separate grounds, under 18 U.S.C. § 3553, that it was needed “to protect the public from further crimes of the defendant” and “to afford adequate deterrence to criminal conduct.”

It is unsurprising that the § 4B1.5 enhancement seems to also be driven by a concern to protect the public and to afford adequate deterrence. Section 3553 reflects the purposes of sentencing generally, and each specific Sentencing Guideline is designed to carry out those purposes. See Rita v. United States, 551 U.S. 338, 348 (2007) (citing 28 U.S.C. § 991(b)). If a provision in a plea agreement allowing the government to argue for an above-Guidelines sentence based on the § 3553 factors is to have meaning, the government must therefore be allowed to make those arguments even if they overlap to some extent with the argument for a potential enhancement. An exception applies when the government acts in bad faith; but the district court found, and we agree, that there has been no bad faith. See United States v. Habbas, 527 F.3d 266, 271 (2d Cir. 2008).1

Dean also argues that his sentence was substantively unreasonable. We review the substantive reasonableness of a sentence for abuse of discretion and will only set aside sentences which are “shockingly high, shockingly low, or otherwise unsupportable as a matter of law.” United States v. Pattee, 820 F.3d 496, 512 (2d Cir. 2016) (internal quotations omitted). The district court considered potential mitigating factors and then sentenced Dean to a below-Guidelines sentence given the need to protect the public. That sentence was neither shockingly high nor unsupportable.

For the foregoing reasons, and finding no merit in Dean's other arguments, we hereby AFFIRM the judgment of the district court.




1.   Dean cites this court's summary order in United Statesv. Robinson; but that (non-precedential) case could be easily distinguished because it implicitly found that the government acted in bad faith. 634 F. App'x 47, 51 (2d Cir. 2016) (summary order).

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