UNITED STATES of America, Appellee, v. Stephen Michael LEVY, also known as Reallybad@aol.com, also known as Steve Levy, Defendant-Appellant.
No. 09-2965-cr.
United States Court of Appeals, Second Circuit.
July 14, 2010.
PRESENT: REENA RAGGI, GERARD E. LYNCH, Circuit Judges, NICHOLAS G. GARAUFIS, District Judge.*
SUMMARY ORDER
Defendant Stephen Michael Levy was convicted, after a jury trial, of both producing and distributing child pornography. See
1. Sufficiency Challenge
Levy contends that the evidence was insufficient to convict him of producing child pornography because it could not establish beyond a reasonable doubt that he used his cellular phone to photograph “a live visual depiction” of child sexual conduct,
“A defendant raising a sufficiency challenge ... bears a heavy burden because a
Levy‘s argument merits little discussion in light of the compelling evidence against him, including—but not limited to—his own admissions. In an online chat with an NYPD detective posing as a pedophile, Levy detailed how, on the night of June 9, when the mother of a five-year-old child “passed out” from wine coolers that Levy had purchased “to get [her] drunk,” Levy was left alone with the victim. June 11, 2007 Chat Tr. at 9. Levy then boasted as to how he molested the child and photographed these actions. Levy expressed annoyance at not being able to perform all the actions he wanted to photograph: he explained that he had only limited time alone with the child before the boyfriend of the mother returned downstairs and, therefore, “took 3 pics really fast.” Id. The pictures on the basis of which he was convicted are entirely consistent with his account of what he did and with what such photographs would look like.
Levy‘s online confession is further corroborated by the testimony of the victim‘s mother and her boyfriend that, on the night of June 9, 2007, he was alone with the victim for several minutes, during which time he used his cellular phone camera to take three photographs of her engaged in sexual conduct with him. For example, the victim‘s mother and her boyfriend testified—and bank records and a cell tower analysis corroborated—that at 11:30 p.m., the time the photographs were taken, Levy was not at his home in Maryland, but rather was visiting their family in Virginia. The same two witnesses testified that, for several minutes during that night, Levy was alone with the victim, who was asleep on the living room couch, while the rest of the victim‘s family was upstairs.
Viewing the evidence in the light most favorable to the government and crediting all inferences that could be drawn in its favor, we conclude that a reasonable jury certainly could have found that Levy produced “a live visual depiction” of sexually explicit activity involving a child victim and, thus, was guilty of production in violation of
2. Blurry Image Challenge
Levy submits that the jury should not have been permitted to consider Government Exhibit 6 (“GX6“),3 his self-described “blurry” image that was indiscernible save for Levy‘s online statement that he attempted to photograph the victim‘s hand on his penis. Since Levy did not object to the admission of these photographs, our review is for plain error, see United States v. Edwards, 342 F.3d 168, 179 (2d Cir.2003), and we identify none here because, as one of three photographs Levy admitted taking of the victim, GX6
Levy nonetheless submits that the jury should not have been permitted to find “lascivious exhibition,”
3. Sentence Challenge
We review Levy‘s sentence for reasonableness, see Kimbrough v. United States, 552 U.S. 85, 90-91, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007), “a particularly deferential form of abuse-of-discretion review,” United States v. Cavera, 550 F.3d 180, 188 n. 5 (2d Cir.2008) (en banc).
a. Procedural Error
Levy asserts that procedural error in his Guidelines calculation renders his sentence unreasonable. See United States v. Jones, 531 F.3d 163, 170 (2d Cir.2008) (noting that improper Guidelines calculation is procedural error). Specifically, he faults the district court‘s application of a two-level obstruction enhancement based on findings that Levy (1) committed perjury by testifying falsely that he was not in Virginia when the charged photographs were taken, that he did not engage in the molestation depicted in the photographs, and that he was himself molested as a child; and (2) coached his brother to lie that Levy was sexually abused as a child. See U.S.S.G. § 3C1.1.
First, Levy contends that the enhancement was unwarranted because any intentional false testimony regarding his childhood abuse was not material to the present charges. See United States v. Salim, 549 F.3d 67, 73 (2d Cir.2008). Whether or not false testimony regarding Levy‘s childhood abuse was material, false testimony insisting that the photographs were taken at Levy‘s home in Maryland and denying participation in the depicted molestation certainly was material. See id. (discussing materiality standard); U.S.S.G. § 3C1.1 cmt. n. 6 (defining “material” evidence as any “evidence, fact, statement, or information that, if believed, would tend to influence or affect the issue under determination“).
Second, Levy argues that his “phone conversation with his brother was hardly conclusive proof that he encouraged his brother to lie for him.” Appellant‘s Br. at 34. This argument misperceives the standard of proof required for a Guidelines enhancement: preponderance of the evi-
Finally, Levy submits that the district court‘s imposition of a Guidelines sentence indicates procedural error in failing adequately to consider other sentencing factors.5 We presume that a sentencing judge understood his discretion under United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), and faithfully discharged his duty to consider the
Accordingly, we identify no procedural unreasonableness in Levy‘s sentence.
b. Substantive Reasonableness
Levy urges us to conclude that his sentence is substantively unreasonable based largely on general criticism of the severe Guidelines applicable to child pornography offenses. In reviewing a sentence for substantive reasonableness, we note that “[a] sentencing judge has very wide latitude to decide the proper degree of punishment for an individual offender and a particular crime,” and we will “set aside a district court‘s substantive determination only in exceptional cases where the trial court‘s decision cannot be located within the range of permissible decisions.” United States v. Cavera, 550 F.3d at 188-89 (emphasis in original) (internal quotation marks omitted). “The fact that the appellate court might reasonably have concluded that a different sentence was appropriate is insufficient to justify reversal of the district court.” Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). Further, “in the overwhelming majority of cases, a Guidelines sentence will fall comfortably within the broad range of sentences that would be reasonable in the particular circumstances.” United States v. Fernandez, 443 F.3d 19, 27 (2d Cir.2006); accord Rita v. United States, 551 U.S. 338, 347, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007). With these principles in mind, we cannot conclude that Levy‘s sentence is substantively unreasonable.
We have considered Levy‘s other arguments on appeal and conclude that they are without merit. Accordingly, we AFFIRM the judgment of the district court.