UNITED STATES OF AMERICA, Appellee, v. GEORGE MUZIO, JR., Defendant-Appellant.
Docket No. 19-33-cr
United States Court of Appeals for the Second Circuit
Decided: July 15, 2020
August Term, 2019 (Argued: February 28, 2020)
Before: LIVINGSTON and PARK, Circuit Judges, and UNDERHILL, Chief District Judge.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF NEW YORK
Defendant-Appellant George Muzio, Jr. appeals from a judgment of conviction entered by the United States District Court for the Northern District of New York (D‘Agostino, J.) primarily sentencing him to a 420-month term of imprisonment. We conclude that Muzio‘s sentence is reasonable and AFFIRM. Judge Underhill dissents in a separate opinion.
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.
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.
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
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
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. Shе suffers from issues of judgment.” App‘x at 149.
The district court also emphasized the breadth of Muzio‘s conduct, which involved
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 “cоnflicts 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 [
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 (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 appreciate the fact that some offenses that do not involve physical contact may nonetheless inflict very real and even more severe harm on victims.6 We thus decline to hold, as a
and so-called “barbaric” sentences are ultimately matters of policy on which we must defer to the judgments of Congress and the Commission. Cf. United States v. Mantanes, 632 F.3d 372, 377 (7th Cir. 2011) (“[I]t is ultimately for Congress and the Commission to consider . . . concerns [regarding disparities in child pornography sentences]. Having said that, however, those concerns can certainly be taken into account by district judges when exercising their sentencing discretion under the now advisory guidelines.“).
In any event, the district court did not impose a Guidelines sentence and instead based Muzio‘s sentence on the applicable mandatory minimums prescribed by Congress. The court concluded that the Guidelines sentence was “greater than necessary to meet the goals of sentencing” simply by virtue of its duration. App‘x at 150. It instead imposed consecutive mandatory-minimum sentences for each child-exploitation count and a third consecutive mandatory-minimum sentence covering all the distribution and possession counts. This was clearly reasonable. Put simply, the district court was not required to give Muzio what would amount to free passes on the second child-exploitation count and the distribution and possession counts. See Broxmeyer, 699 F.3d at 290.
Muzio also challenges the district court‘s balancing of the sentencing factors set forth in
B. Procedural Reasonableness
Finally, Muzio argues that his sentence was procedurally unreasonable because the district court incorrectly calculated the applicable Guidelines range. Because Muzio did not object below to the district court‘s Guidelines calculations, we review this challenge for plain error. See United States v. Villafuerte, 502 F.3d 204, 207-08 (2d Cir. 2007).
Each crime to which Muzio pled guilty carried a statutory maximum sentence of less than life, so Muzio‘s Guidelines range was equal to the combined statutory maximum. See
Muzio argues that this error rendered it “impossible [for the district court] to formulate a proper sentence.” Appellant‘s Supp. Letter at 2. For practical purposes, however, a 200-year sentence and a 500-year sentence are both life sentences, and the district court treated the Guidelines range as such. Cf. United States v. Betcher, 534 F.3d 820, 827-28 (8th Cir. 2008) (noting that a 750-year sentence is “for practical purposes . . . a life sentence, and that is how we view it“). Moreover, the district court expressly disclaimed reliance on the Guidelines in formulating its sentence.
III. CONCLUSION
For the foregoing reasons, the judgment of the district court is affirmed.
UNITED STATES OF AMERICA, Appellee, v. GEORGE MUZIO, JR., Defendant-Appellant.
Docket No. 19-33-cr
United States Court of Appeals for the Second Circuit
Decided: July 15, 2020
Stefan R. Underhill, District Judge, dissenting:
George Muzio produced child pornography by tricking minor girls into sexting with him by posing as a teenage boy with cancer. He engaged in no violence and, indeed, had no physical contact with any of the girls. There is no evidence that he has ever had inappropriate contact with any minor. Muzio did not film any of the girls, even remotely. None of the images or videos, as disturbing as they are, involves sex acts with another person. Nevertheless, as a first-time offender, Muzio was sentenced to 420 months—35 years—in prison, a sentence that is more than 12 years longer than the nationwide average sentence for production of child pornography. In my viеw, that sentence did not meaningfully distinguish Muzio from more culpable child pornography producers, is shockingly high, and is therefore substantively unreasonable. Accordingly, I respectfully dissent.
I. BACKGROUND
Muzio pled guilty to a nine-count indictment that charged him with producing (two counts), distributing (six counts), and possessing (one count) child pornography. All of Muzio‘s charged conduct took place over the internet using his computer or through his iPhone.1 He was never within 100 miles of his victims; he used deceit to convince the victims to film or photograph themselves and send him the product. He did not touch or film, remotely or otherwise, any victim.
The two production charges (brought as sexual exploitation of a child charges) are based upon Muzio‘s extensive electronic contact with two particular victims (Victims 1 and 2).2 Muzio used his iPhone and an app called Kik Messenger to communicate with Victims 1 and 2. Between August 2014 and March 2015, Muzio and Victim 1—who lived in Montana—exchanged over 2,000 text messages. Victim 1 was eleven years old and Muzio was 33. Muzio represented himself to be a teenage boy. Muzio manipulated Victim 1 by telling her that he loved her and that they would get married one day. Muzio solicited pornographic photographs and videos from Victim 1 and often instructed her in graphic terms what he wanted her to do in those photographs and videos.
Muzio also sent Victim 1, on at least one occasion, a photograph of his erect penis.
Between October 2015 and January 2016, Muzio and Victim 2—who lived in Georgia—exchanged over 4,700 text messages. Victim 2 was 13, and Muzio was 34. Again, Muzio sent Victim 2 incredibly graphic messages, manipulated Victim 2, and solicited pornographic photographs and videos that Muzio choreographed.
Finally, when going through seized materials (DVDs), federal agents discovered hundreds of home video сlips depicting a teenage girl that were taken over a two- to three-year period. The videos were taken from the second floor of Muzio‘s house and featured Muzio‘s neighbors’ daughter (when she was between fourteen and sixteen years old) exiting and entering her house; the videos focused on the girl‘s breasts and buttocks.
In his written plea agreement with the government, Muzio agreed not to appeal a sentence of incarceration that did not exceed 365 months—the top of the Guidelines range Muzio would have faced for a single count of sexual exploitation of a minor with the enhancements applicable to his conduct (offense level 40 and criminal history category I). District Judge Mae A. D‘Agostino sentenced Muzio to 420 months’ imprisonment and lifetime supervised release. The government had submitted that the most relevant and important section 3553(a) factor was the need “to protect the public from further crimes of the defendant.” App‘x at 139. I quote several portions of the sentencing transcript to highlight (what I believe to be) the reasons animating the district judge‘s sentence.
Before reading excerpts of text messages between Muzio and Victims 1 and 2, Judge D‘Agostino explained:
We are not talking about a few isolated discussions with children. That would be bad enough. But we‘re talking about thousands and thousands of conversations with children all throughout the United States and throughout the world. You knew just how to prey on these victims. You knew just what to say when they would tell you that they didn‘t want to do these things. Any reviewing court has to understand that you were a predator in every sense of the word.
App‘x at 146. Judge D‘Agostino continued:
[Although] the defendant portrayed himself as a stay-at-home father, actively involved in his children‘s lives and activities, . . . he was acting as an online sexual predator . . . .
. . .
The defendant not only acted as an online sexual predator, he perpetrated [sic] the online child pornography epidemic by distributing nude and pornographic images and videos of minor females . . . whom he introduced to at least one other individual. He also shared the female‘s [sic] social media user names with the individual so he could also attempt to induce the minors to produce further sexually explicit material of themselves.
App‘x at 150-51. Judge D‘Agostino also found important that Muzio videotaped and photographed his neighbor‘s young minor daughter over a number of years, zooming in on her buttocks and chest as she innocently walked to and from school, her home and her car.
. . .
This conduct demonstrates that the defendant poses a risk not only to minors online but to minors in the community as well.
App‘x at 151-52.
Judge D‘Agostino discounted the mitigating effects of both Muzio‘s mental health issues and his alleged history of
Judge D‘Agostino noted that her sentence would comply with
reflect the seriousness of the offense, and this offense was egregiously serious; it needs to promote respect for the law; it needs to deter further criminal conduct; and it most definitely needs to protect the public from further crimes from this predаtor.
App‘x at 153. This appeal followed.
II. DISCUSSION
Sentencing defendants who have committed child pornography offenses is extraordinarily difficult, as is reviewing those sentences for substantive reasonableness. The offense conduct constitutes a serious breach of fundamental societal norms and leaves even seasoned judges disquieted. The conduct of the defendant, and the impact on the victims, is often horrific—especially with defendants who have produced child pornography. These cases instill a sense that the defendants deserve what they get, no matter how long the sentences might be. But, like all offenses, child pornography offenses vary in their seriousness. Even the conduct of producers of child pornography occurs along a spectrum. That spectrum calls for a concomitant range in the seriousness of the sentences imposed, for we have a statutory duty to impose—or affirm—only sentences that are “sufficient, but not greater than necessary,” to serve the purposes of sentencing, even in child pornography cases. I do not believe the sеntence imposed on Muzio was the shortest sentence “sufficient” to serve those purposes. Indeed, although his conduct places him among the least serious production offenders, his sentence was dramatically above the national average for production offenders. Because I believe Muzio‘s sentence was shockingly high, and thus substantively unreasonable, I would vacate and remand.
A. Review for Substantive Reasonableness
Substantive review of sentences “is intended to ‘provide a backstop’ against sentences that are ‘shockingly high, shockingly low, or otherwise unsupportable as a matter of law.‘” United States v. Dorvee, 616 F.3d 174, 183 (2d Cir. 2010) (quoting United States v. Rigas, 583 F.3d 108, 123 (2d Cir. 2009)). The
It is not empirically surprising that this Court holds that Muzio‘s sentence is substantively reasonable. There are almost no decisions, here or in other Circuits, reversing a sentence imposed for production of child pornography on substаntive unreasonableness grounds. In the 124 appeals in
In United States v. Sawyer, 672 F. App‘x 63 (2d Cir. 2016) (“Sawyer I“), the Court vacated and remanded a 30-year sentence imposed by Judge D‘Agostino on a producer of child pornography who had engaged in inappropriate physical contact with a four-year-old and a six-year-old. The decision was based, in part, on Judge D‘Agostino‘s “overreliance on Sawyer‘s danger to the community.” Id. at 67. When reviewing the 25-year sentence imposed following remand, the Court again initially vacated and remanded for failure to comply with the mandate. United States v. Sawyer, 892 F.3d 558, 564 (2d Cir. 2018). Five weeks later, the Court withdrew that decision, United States v. Sawyer, 2018 WL 5116340, at *1 (2d Cir. July 26, 2018), and issued an order affirming the judgment, United States v. Sawyer, 2018 WL 5117293, at *1 (2d Cir. July 30, 2018). Several months later, this Court issued a published opinion that rejected the substantive reasonableness appeal and noted that: “The sentence is barbaric without being all that unusual.” United States v. Sawyer, 907 F.3d 121, 126 (2d Cir. 2018) (“Sawyer II“).
In a second case, the Court suggested, without holding, that it had concerns about the substantive reasonableness of a sentence impоsed on a child pornography producer. It remanded an extremely lengthy sentence “to ensure that the sentence is not based on a clearly erroneous understanding of the facts.” United States v. Brown, 826 F.3d 51, 53 (2d Cir. 2016). About a month later, the panel vacated its opinion and judgment. See Order, United States v. Brown, No. 1:12-cr-145 (GLS) (N.D.N.Y.), Doc. No. 57. Ultimately, the Second Circuit affirmed Brown‘s 720-month sentence as substantively reasonable. United States v. Brown, 843 F.3d 74 (2d Cir. 2016).
The Second Circuit is not unique in its reluctance to reverse child pornography production sentences as substantively unreasonable. I am aware of only two such decisions nationwide. In United States v. Aleo, 681 F.3d 290, 294, 299–302 (6th Cir. 2012), the Sixth Circuit reversed as substantively unreasonable a 60-year sentence imposed on a grandfather who made a hidden-camera video of him sexually touching his five-year-old granddaughter while drying her off after a bath. And in United States v. Killen, 729 F. App‘x 703, 717–18 (11th Cir. 2018), the Eleventh Circuit reversed a 139-year sentence as substantively unreasonable because the district judge refused to take into account unwarranted disparities in sentencing.
The creation and trafficking of child pornography is a horrible crime because it perpetuates and elоngates the suffering of some of the most innocent in our society. See Paroline v. United States, 572 U.S. 434, 439–40 (2014). Few crimes cut so deeply against fundamental societal norms. But that should not mean that any sentence within the statutory range is immune from review. As former Chief Judge Dennis G. Jacobs noted, in dissent: “If any sentence between the [statutory] minimum and maximum is substantively reasonable as a matter of law unless the offense borders on innocence itself, there is no such thing as substantive unreasonableness in this area.” United States v. Broxmeyer, 699 F.3d 265, 304 (2d Cir. 2012) (Jacobs, C.J., dissenting); see Brown, 843 F.3d at 85 (Sack, J., concurring) (“[T]he extreme nature of [child pornography] offenses compels . . . particularly meticulous scrutiny.“).
B. The Sentencing Guidelines Offer No Help
The child pornography production guideline,
Muzio‘s Guidelines range, for a non-violent, first-time offender who had no physical contact with any victim, was calculated to be 6,000 months. We learned on appeal that it was actually “only” 2,400 months, but there is no practical difference between 500 years in prison and 200 years in prison.
The Guidelines are an exceedingly blunt tool in the child pornography context. They do not call for consideration of the characteristics of the defendant and do not meaningfully account for differences in conduct committed by persons who violated the same statute. It is axiomatic that punishment should be proportional to an offense. See Graham v. Florida, 560 U.S. 48, 59 (2010); see also Dorvee, 616 F.3d at 187 (“[C]ourts must guard against unwarranted similarities among sentences for defendants who have been found guilty of dissimilar conduct.“) (citing Gall v. United States, 552 U.S. 38, 55 (2007)). Achieving such proportionality is one major reason that the Sentencing Guidelines exist. See
The fact that the sentence imposed in this case falls well below the applicable Guidelines range does not suggest that the sentence is substantively reasonable. The Second Circuit has noted that “the amount by which a sentence deviates from the applicable Guidelines range is not the measure of how ‘reasonable’ a sentence is” and that, even when a sentence falls “relatively far below” the Guidelines range, an “individualized application of the statutory sentencing factors” is still required. See Dorvee, 616 F.3d at 184 (citing Gall, 552 U.S. at 46–47). Even Judge D‘Agostino implicitly recognized the uselessness of the Guidelines range in this case when she remarked 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.” App‘x at 153.
The decision to affirm Muzio‘s sentence actually creates the very sentencing disparity that the Guidelines were enacted to dispel. Statistically, Muzio‘s conduct places him in the least serious 10 percent of production defendants nationwide. Indeed, according to the U.S. Sentencing Commission, in 2010 (the most recent year for which detailed child pornography offense statistics are available), 74 percent of “production offenders were physically present with their victims or remotely aided and abetted another adult offender in the commission of a sexual contact offense against a minor victim.” See U.S. Sentencing Comm‘n, Federal Child Pornography Offenses 263 (2012) (the “2012 Commission Report“), https://www.ussc.gov/sites/default/files/pdf/news/congressional-testimony-and-reports/sex-offense-topics/201212-federal-child-pornography-offenses/Full_Report_to_Congress.pdf. A further 15.5 percent of production offenders were “physically present with their victims” but did not touch them or aid another in touching them. See id. Only 10.5 percent of production offenders neither were physically present nor touched the minor. See id.
That last category—“offenders who solicited still images of self-produced child pornography from minors via email or text or who recorded sexually explicit conduct of minors who appeared remotely via webcam“—describes Muzio. See id. at 263 n.56. But, even though Muzio‘s conduct would have placed him in the least serious 10 percent of production offenders for the fiscal year 2010, his sentence was 153 months longer than the average sentence for all production offenders in 2010. See 2012 Commission Report at 253 (reporting average sentence for production offenders as 267.1 months). That disparity shocks the conscience.
Similarly, in 2019, the mean sentence for a sexual abuser5 under the Guidelines was 206 months. See U.S. Sentencing Comm‘n, 2019 Sourcebook of Federal Sentencing
Indeed, the mean sentence for a sexual abuser in criminal history category VI was 272 months. See id. at tbl.27. By any statistical metric, Muzio was sentenced much too harshly.
Taken as a whole, the Guidelines themselves indicate that Muzio‘s sentence is egregiously long: The Guidelines recommend that many defendants who subject children to repeated, inappropriate sexual contact should spend less than 35 years in prison. For instance, under the Guidelines, a first-time offender “who intentionally seeks out and contacts a twelve[-]year-old on the internet, convinces the child to meet and to cross state lines for the meeting, and then engages in repeated sex with the child,” would bе subject to a Guidelines range of 151 to 188 months’ imprisonment. See Dorvee, 616 F.3d at 187 & n.11; Sawyer I, 672 F. App‘x at 66 (citing Dorvee). Similarly, by my calculation, a first-time offender who, through the internet, entices a 14-year-old into crossing state lines under false pretenses, sells her into the sex trade, and profits from her commercial sex acts would be subject to the same Guidelines range of 151 to 188 months’ imprisonment.6 In both of the above situations, the Guidelines range would be 108 to 135 months’ imprisonment if the hypothetical defendants pled guilty and earned three points off for acceptance of responsibility. See
To the extent that the Guidelines and statistics collected by the Sentencing Commission provide any meaningful guidance regarding what sentence to impose, they suggest that Muzio‘s sentence was a shocking aberration.
C. The Section 3553(a) Factors Do Not Support Muzio‘s Sentence
The ultimate touchstone for all federal sentencing is
- reflect the seriousness of the offense, promote respеct for the law, and provide just punishment for the offense;
- afford adequate deterrence to criminal conduct;
- protect the public from further crimes of the defendant; and
- provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner.
Muzio‘s sentence in this case is substantively unreasonable because it is shockingly high, and the district judge‘s heavy reliance on one of the section 3553(a) factors—“protection of the public“—cannot bear the weight she assigned it. Although Muzio was convicted of two production offenses, Muzio‘s conduct was substantially less severe than a typical production offender‘s because he never touched, or tried to touch, any of his victims—he was never even in the same room with one. Still, Judge D‘Agostino sentenced Muzio as if he were among the
In too many other cases to count, child pornography defendants who rape, molest, or torture children get meaningfully shorter sentences than Muzio did in this case. See, e.g., Brown, 843 F.3d at 92 (Pooler, J., dissenting) (citing United States v. Gilmore, 599 F.3d 160, 162 (2d Cir. 2010) (affirming 30-year sentence for defendant who repeatedly raped eight-year-old daughter); United States v. Swackhammer, 400 F. App‘x 615, 616 (2d Cir. 2010) (affirming 168-month sentence for defendant who repeatedly molested children); United States v. Irey, 612 F.3d 1160, 1166 (11th Cir. 2010) (en banc) (determining that 30-year sentence (statutory maximum) should be imposed on defendant who raped, sodomized, and sexually tortured fifty or more little girls, some as young as four); United States v. Castro-Valenzuela, 304 F. App‘x 986, 988 (3d Cir. 2008) (affirming 220-month sentence for defendant who recorded himself violently sexually assaulting his girlfriend‘s seven-year-old niece)); United States v. Batchu, 724 F.3d 1, 3, 14 (1st Cir. 2013) (affirming 365-month sentence for defendant—a “skilled and apparently undeterrable predator” and “relentless and highly dangerous child molester“—who travelled all over the country to sexually exploit fifteen-year-old and violated court-issued restraining orders and state-level prosecutions to do so); United States v. Rudow, 373 F. App‘x 298, 299–300 (3d Cir. 2010) (affirming 326-month sentence when dеfendant “made several videos of himself sexually abusing his fourteen-year-old daughter” and had six prior felony convictions, putting him in criminal history category VI).
Of course, I acknowledge that this Court has affirmed some extremely long sentences for child pornography defendants convicted—as Muzio was—of production under
A signature feature of those cases is the defendant‘s physical proximity to the victims. In all the above-cited cases, for instance, the defendant either had physical/sexual contact with his victims or recorded/photographed them while in the same room. This Court has repeatedly emphasized that physical contact and proximity—and the attempt to have physical contact—are extremely important factors in determining the substantive reasonableness of child pornography sentences. See, e.g., Dorvee, 616 F.3d at 184; Jenkins, 854 F.3d at 191 (“Whether a child pornography offender has had or
Muzio‘s conduct was, of course, abhorrent. Crucially, however, he never had—or even attempted to have—physical contact with any minor. Indeed, Muzio was never in the same room as a minor victim, and all the relevant evidence suggests that he never would have been. The minors whom Muzio contacted were strangers. Muzio raised two young boys and was a Little League coach for boys between the ages of five and fifteen, but there are no allegations of impropriety against him in those roles. Online, Muzio initiated computer contact with young girls with absolutely no regard for where those girls were located geographically. Muzio never met any of those girls. (Indeed, Muzio‘s anxiety made it difficult for him even to leave his own parents’ house.8) In addition, despite the fact that Muzio surreptitiously recorded the young girl who lived next door for years, Muzio never attempted to contact her inappropriately.9
Muzio‘s conduct is closer to the conduct of defendants in distribution cases than to the conduct of a bad production offender (e.g., a child rapist). In distribution and possession cases, which typically do not include sexual contact, the Second Circuit has vacated as substantively unreasonable several sentences much shorter than the one in this case. See Dorvee, 616 F.3d at 176 (20 years); Jenkins, 854 F.3d at 184 (225 months); see also United States v. DiMartino, 797 F. App‘x 27, 30 (2d Cir. 2019) (affirming sentence but acknowledging that the sentences in Dorvee and Jenkins were “shockingly high“). Indeed, in my view, defendants in some distribution cases—including Dorvee, in which the defendant was arrested when he showed up to a meeting with a (fake) 14-year-old boy—are closer to having “sexual contact” with a minor than was Muzio. See Dorvee, 616 F.3d at 176.
Despite all this, in sentencing Muzio, the district judge focused on the need to protect the public. See
Ultimately, Congress hаs directed that sentences should be “sufficient, but not greater than necessary” to serve the purposes of sentencing. The sentence imposed in this case is much “greater than necessary” to serve the purposes of sentencing. For instance, the sentence goes far beyond what would be necessary for “adequate deterrence.”
Moreover, the sentence in this case does not “promote respect for the law.”
a defendant who actually touched a four-year-old and a six-year-old was “barbaric,” how can the 35-year sentence in this case be anything but barbaric?
No matter how commonly they are imposed, Courts of Appeals should not be in the business of affirming barbaric sentences. Any barbaric sentence, almost by definition, shocks the conscience and must therefore be substаntively unreasonable. Indeed, the Supreme Court has made clear that the Eighth Amendment‘s ban on cruel and unusual punishments “prohibits the imposition of inherently barbaric punishments under all circumstances.” Graham, 560 U.S. at 59 (citation omitted). Put differently, a barbaric sentence must, necessarily, be a sentence greater than necessary to comply with the purposes of sentencing. See
As discussed above, the fact that certain child rapists and child sex traffickers are likely under the Guidelines to receive more lenient sentences than Muzio‘s also does not promote respect for the law. Relatedly, the severity of Muzio‘s sentence depended,
Similarly, individuals in New York who commit crimes worse than Muzio‘s will be subject to statutory maximum penalties below Muzio‘s sentence if they are prosecuted by state authorities. For instance, in New York, an individual who has sex with a child under eleven years old has committed rape in the first degree. See
D. Factors that Distinguish Among Child Pornography Production Defendants
It is not enough to say that we must distinguish among child pornography production defendants and that the Guidelines do not effectively do so. I believe that Courts of Appeals have the obligation to step into the void and provide meaningful guidance for district judges through development of a common law of sentencing. I set forth below a series of non-exclusive factors that I believe should be considered by sentencing judges and reviewing courts when dealing with child pornography offenders.14 These factors are intended to provide a broad framework to assist courts in evaluating the relative seriousness of child pornography production offenses, a task that courts are obliged to undertake in order to avoid treating all child pornography production offenders like the worst such оffenders. This list is not exhaustive, but I hope it demonstrates some of the many ways in which child pornography production offenses vary in seriousness.15
Factors regarding the nature of the offense:
- Did the defendant engage in violence? The worst child pornography production cases involve the filming of child rape; forced or coerced sex acts are among the most serious offenses imaginable.
- What is the nature of the sexual contact involved? The conduct ranges from no actual contact to touching of genitalia to full penetration or oral sex. Repeated conduct (multiple times or multiple victims) is substantially more serious than a single episode.
- How was the pornography produced? Was the defendant filming his own interaction with the victim, filming another‘s interaction, passively recording through a hidden surveillance device, or soliciting victims’ selfies? Did the defendant participate alone or with others?
- What was the extent of the distribution or use of the images? Was there a commercial exploitation? How wide was distribution on the internet? Were the images used as currency or to barter?
- Did the defendant engage in deceit or trickery, including identity misrepresentation? Fraudulently inducing “voluntary” participation of the victim reflects serious wrongdoing.
- How many films or images did the defendant create? Production of a large volume of material reflects consciousness of wrongdoing.
Factors regarding the status of the victim(s):
- How old was the victim or victims? The age of a victim can dramatically affect the crime‘s seriousness; in general, the younger the more serious, with crimes involving very young victims being especially horrific.
- How many victims were there? The number of victims and the length of time over which the conduct occurred both can reflect seriousness.
- What relationship/responsibility did the defendant have vis-à-vis the victim? Was the defendant a parent, guardian, relative, babysitter, or person with authority over the victim?
- What was the intellectual caрacity of the victim? Was the victim mentally disabled, drugged, or too young to resist/understand?
In my view, factors one, two, and three are the most important considerations, and they cut in Muzio‘s favor. As described above, Muzio did not engage in violence; he had no sexual contact with any victim; and he himself did not film any child pornography. Factors seven, nine, and ten also weigh in Muzio‘s favor. Although Muzio‘s conduct involved girls as young as 11 (including Victim 1), most of his victims “were between 13 and 14 years old,” PSR at ¶ 3(i); many production cases involve much younger children. Further, Muzio and all his victims were strangers, and Muzio did not target especially vulnerable young girls, although he did use deceit to
Application of these factors again confirms that Muzio‘s sentence was drastically out of line with the specific facts of his offense and with the nature of his victims.
III. CONCLUSION
For the foregoing reasons, I would vacate Muzio‘s sentence and remаnd for resentencing. Muzio‘s sentence is shockingly high and therefore substantively unreasonable. Because the majority has decided to affirm, I respectfully dissent.