New York Federal Criminal Practice Blog
July 30, 2010

Second Circuit Issues Notable Decision on Use of Psychologist's Report at Sentencing

The shift from a mandatory sentencing guideline regime to an advisory one has increased the importance of – and the district courts’ reliance on – expert evaluations of the defendant for sentencing purposes.  This is especially true in cases where the defendant may pose a threat to the community upon release.  In United States v. DeSilva, 2010 WL 2925863 (2d Cir., July 28, 2010), the Court reversed a 132-month sentence in a child pornography distribution case because the district court had erroneously relied on a psychologist’s report addressing the defendant’s potential dangerousness in the context of a bail application.  In the process, the Court made some important observations about the use of a psychological report at sentencing, including acknowledging it may provide relevant mitigating evidence, and that a district court should explain its reasons in the event it rejects its conclusions.  


The defendant, an admitted child molester, pled guilty to distributing child pornography.  He faced a guideline range of 235-240 months.  In sentencing him to 132 months, the district court relied in part on a psychological report of the defendant that concluded he was not a danger to the community.  The report had been prepared for use at a pretrial bail hearing, and premised its dangerousness findings on the fact that any pretrial release would be into the defendant’s parents’ custody.  The government appealed.


The Second Circuit agreed with the government that the district court had committed procedural error when it relied on the report “in so far as it entirely removed [the psychologist’s] opinion from the context in which it was rendered.”  In particular, the Court noted that the report at issue “was conditioned on the premise that DeSilva would be released to his parents,’ and therefore was only of “minimal relevance” on the issue of his potential to molest children following his release from his term of imprisonment, when parental monitoring would not be on the cards.

Notably, the Court had this to say about psychological reports in general:
Although a psychologist’s report may provide mitigating evidence for the court’s consideration during sentencing, the court must still conduct an independent evaluation of the defendant in light of the factors set forth in 18 U.S.C. § 3553(a).  If the psychologist’s report cannot be squared with the court’s own judgment of the defendant’s culpability and the danger he poses to society, the court is free, in its discretion, to decline to rely on the psychologist’s findings, so long as the court explains its basis for doing so.

In appropriate cases, psychological reports of the defendant can have a significant mitigating effect at sentencing – humanizing him in a way that the presentence report does not, elucidating his offense behavior in the context of his unique emotional and psychological deficits, and giving the sentencing judge security (and cover) in rejecting the applicable advisory guideline range.   DeSilva reaffirms all of the above, with the simple and elementary caveat that if a psychological report is to be used at sentencing, it should not be recycled from another source, but should be tailored directly to the sentencing factors under 18 U.S.C. § 3553.

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