United States v. Muzio

• Decision Date: 15 July 2020
• Docket Number: Docket No. 19-33-cr,August Term, 2019
• Citation: 966 F.3d 61
• Parties: UNITED STATES of America, Appellee, v. George MUZIO, Jr., Defendant-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

966 F.3d 61

UNITED STATES of America, Appellee,

v.George MUZIO, Jr., Defendant-Appellant.

Docket No. 19-33-cr

August Term, 2019

United States Court of Appeals, Second Circuit.

Argued: February 28, 2020

Decided: July 15, 2020

Terrence L. Kindlon, The Kindlon Law Firm, PLLC, Albany, New York, for Defendant-Appellant.

Paul D. Silver, Assistant United States Attorney, for Grant C. Jaquith, United States Attorney for the Northern District of New York, Albany, New York, for Appellee.

Before: LIVINGSTON and PARK, Circuit Judges, and UNDERHILL, Chief District Judge.¹

Park, Circuit Judge:

This case concerns the reasonableness of a criminal sentence for child pornography offenses. The district court primarily sentenced Defendant-Appellant George Muzio, Jr. to a below-Guidelines, 420-month term of imprisonment. In light of Muzio’s reprehensible conduct, we conclude that the district court acted well within its discretion. We therefore affirm.

I. BACKGROUND

A. Facts

From August 2014 to May 2016, Muzio exploited at least fourteen underage girls, luring them into sending him a trove of sexually explicit pictures and videos of themselves.² Muzio, who was in his thirties, posed as a teenage boy on the internet and manipulated his victims by saying that he was suffering from cancer and by repeatedly professing his love for them, including telling several girls that he would marry them when they were older. He also pressured his victims into sending more pictures and videos when they protested.

Muzio then traded many of these pictures and videos with at least one other person on the internet in exchange for more child pornography. He also traded the usernames of his victims with at least two other child pornography consumers, along with "suggestions for ways to approach the girls online so the others could contact and proposition the girls for additional images and videos." App’x at 138–39.

In addition, Muzio downloaded and otherwise received substantial quantities of child pornography. At the time of his arrest, Muzio had approximately 400 videos of child pornography on his laptop. He also surreptitiously videotaped his adolescent female neighbor on hundreds of occasions from the second-floor window of his home.

B. Procedural History

Muzio was charged with, and ultimately pled guilty to, two counts of sexual exploitation of a child in violation of 18 U.S.C. §§ 2251(a), (e) ; six counts of distribution of child pornography in violation of 18 U.S.C. §§ 2252A(a)(2)(A), (b)(1) ; and one count of possession of child pornography in violation of 18 U.S.C. §§ 2552A(a)(5)(B), (b)(2). Muzio faced a mandatory minimum sentence of 15 years and a maximum of 30 years for each exploitation count, see id . § 2251(e) ; a mandatory minimum of 5 years and a maximum of 20 years for each distribution count, see id. § 2252A(b)(1) ; and a maximum of 20 years for the possession count, see id . § 2252A(b)(2).

In advance of sentencing, the Probation Office prepared a Pre-Sentence Report (the "PSR"). In calculating Muzio’s Guidelines range under the United States Sentencing Guidelines, the PSR found that Muzio was in Criminal History Category I and that his conduct warranted the highest possible offense level of 43, yielding a Guidelines range of life. Because each crime carried a statutory maximum sentence of less than life, however, the PSR concluded that Muzio’s actual Guidelines range was the combined statutory maximum of 6,000 months.³ See U.S.S.G. § 5G1.2(b).

At sentencing, Muzio asked the district court to impose a mandatory minimum sentence of 15 years, to run concurrently on all counts. He did not object to the PSR, which the district court adopted in full. The district court imposed a sentence of 420 months’ incarceration—the mandatory minimum of 15 years for each child-exploitation count and 5 years for one of the distribution counts, to run consecutively, and 5 years each for the remaining distribution and possession counts, to run concurrently with all counts—to be followed by a lifetime term of supervised release.

In explaining its sentence, the district court detailed the depth of Muzio’s exploitative conduct. It noted that the two victims of the sexual exploitation counts were only 11 and 13 years old, and it explained how Muzio "sucked these [children] into sending [Muzio] vile, pornographic images ... by telling them that [he] loved them." App’x at 143–44. The district court further observed that, in a victim impact statement, one of the victims "indicated that she’s lost emotional trust of men, that it’s affected her ability to have healthy and happy relationships, that she struggles with Post-Traumatic Stress Disorder, that she doesn’t want to be touched, that she’s had numerous counseling sessions and she still suffers. She suffers from issues of judgment." App’x at 149.

The district court also emphasized the breadth of Muzio’s conduct, which involved "thousands and thousands of conversations with children all throughout the United States and throughout the world." App’x at 146. Muzio’s victims, the district court observed, are "real" people who are "never going to be able to forget what they did," and whose images and videos "will live on forever ... on the internet." App’x at 148. "Children are supposed to be able to lead their lives without being subjected to this kind of evil." App’x at 162.

The district court acknowledged the letters from family and friends that "indicate[d] that [Muzio] w[as] a good person, a good father, that [he was] a baseball coach, that [he] did good things in the community." App’x at 148. It also credited Muzio’s "history of mental health issues," and noted that "after his arrest, [Muzio] indicated he had been sexually abused" as a child. App’x at 152, 153. Nevertheless, the district court concluded that "the only reason to impose a non-guideline sentence in this case is the fact that the guideline range calls for a sentence of 500 years," which was "greater than necessary to meet the goals of sentencing." App’x at 153, 150. This appeal follows.

II. DISCUSSION

A. Substantive Reasonableness

On appeal, Muzio primarily challenges the substantive reasonableness of his sentence. "[O]ur review of a sentence for substantive reasonableness is particularly deferential," and we will set aside "only those sentences that are so shockingly high, shockingly low, or otherwise unsupportable as a matter of law that allowing them to stand would damage the administration of justice." United States v. Broxmeyer , 699 F.3d 265, 289 (2d Cir. 2012) (internal quotation marks omitted). Mindful of this standard, we conclude that Muzio’s sentence "easily falls within the range of permissible decisions available to the district court." United States v. Rivernider , 828 F.3d 91, 111 (2d Cir. 2016).

The district court carefully reviewed the record and determined that Muzio’s conduct warranted a 35-year sentence. We agree. As described above, Muzio’s conduct was abhorrent, notable for both the number of victims and the lengths he went to manipulate them. The district court therefore acted well within its discretion in imposing a 35-year sentence.

Muzio’s arguments to the contrary are unavailing. First, Muzio contends that his sentence "conflicts with" our decisions in United States v. Dorvee , 616 F.3d 174 (2d Cir. 2010), and United States v. Jenkins , 854 F.3d 181 (2d Cir. 2017). Appellant’s Br. at 20. But Dorvee and Jenkins do not stand for the proposition that nearly any sentence for child pornography above the mandatory minimum is substantively unreasonable. See Appellant’s Br. at 24. Muzio’s reliance on those cases is thus misplaced.

Neither Dorvee nor Jenkins involved the production of child pornography. Dorvee pled guilty to a single count of distribution of child pornography, see Dorvee, 616 F.3d at 176, and a jury convicted Jenkins of one count of possession of child pornography and one count of transportation of child pornography, see Jenkins , 854 F.3d at 183–84. Both received sentences at or near the statutory maximum. See Dorvee , 616 F.3d at 176 ; Jenkins , 854 F.3d at 184. And neither had any contact with children—virtually or otherwise.⁴ See Dorvee , 616 F.3d at 176 ; Jenkins , 854 F.3d at 184. Under those narrow circumstances—i.e. , where the defendant was not involved in production of child pornography and had no contact with children—we noted that a straightforward application of the sentencing Guidelines "can lead to unreasonable sentences that are inconsistent with what [ 18 U.S.C.] § 3553 requires." Dorvee , 616 F.3d at 184. It is in this limited context that we warned that strict adherence to the Guidelines could result in "virtually no distinction between the sentences for ... the most" and least serious offenders because many of the sentencing enhancements in U.S.S.G. § 2G2.2 "are all but inherent to the crime of conviction." Id. at 186–87.

Muzio is undoubtedly a more "dangerous" offender than Dorvee or Jenkins. Id . at 187. Child pornography production offenses are extremely serious and ordinarily warrant significantly harsher punishment than possession or even distribution offenses. See Paroline v. United States , 572 U.S. 434, 439–40, 134 S.Ct. 1710, 188 L.Ed.2d 714 (2014) ("The demand for child pornography harms children in part because it drives production, which involves child abuse. The harms caused by child pornography, however, are still more extensive because child pornography is a permanent record of the depicted child’s abuse, and the harm to the child is exacerbated by its circulation.") (cleaned up). Muzio’s conduct also involved manipulating many victims into repeated acts of producing child pornography. The concerns articulated in Dorvee and Jenkins are therefore inapplicable here, where the defendant was involved in the production of child pornography and had direct contact with child victims.

The dissent repeatedly emphasizes that Muzio’s conduct did not involve physical contact.⁵ But this fails to...