Sentencing; Procedural reasonableness; 18 USC § 3553(a); Five-level pattern enhancement (USSG § 2G2.2(b)(5)); United States v Surratt; Reliance on Guidelines commentary; Harmless error; Alleged speculation that defendant would reoffend; Consideration of defendant’s jail messages; Substantive reasonableness; Imposition of the statutory maximum; Effect of a within-Guidelines sentence; Sentence exceeding the government’s recommendation

The court held that any error in the district court applying the pattern enhancement in sentencing defendant-Dodd was harmless “given the unique circumstances” of this case, and that the district court did not abuse its discretion in considering his “messages describing how he would abuse” the infant victims upon release. It also rejected his substantive reasonableness challenge to his statutory maximum, within-Guidelines 50-year sentence. He was convicted of possessing and conspiring to produce child pornography. In calculating his Guidelines, “the district court included a five-level enhancement for engaging in a ‘pattern of activity involving the sexual abuse or exploitation of a minor’”— § 2G2.2(b)(5). Challenging the procedural reasonableness of his sentence, he argued that the district court improperly relied on Guidelines commentary. But the court concluded that it did not need to decide whether the district court erred in doing so because any such error was harmless here. “Dodd’s Guidelines range did not change with the addition of the pattern enhancement.” And the district court’s decision to apply it “did not mean that it considered information about Dodd that otherwise would have been off limits.” As part of his procedural reasonableness challenge, he also asserted “the district court abused its discretion by improperly considering the risk Dodd posed to the infant victims upon his release[,]” contending that this was improper speculation. As part of § 3553(a)(2), “the district court properly considered whether the record demonstrated if Dodd is likely to commit further crimes.” It interpreted messages he sent while already in prison “expressing his desire to sexually abuse these infants, combined with the fact that he actually did coerce [a woman] into abusing them, as an indicator that he poses a risk to the public. And it did not abuse its discretion by considering that factor at sentencing.” His substantive reasonableness challenge also failed. His within-Guidelines sentence was presumed to be substantively reasonable, and “the district court explained that several aspects of Dodd’s offense made it particularly concerning.” Further, it did not abuse its discretion in imposing “a higher sentence than the government recommended.” Affirmed.