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10-5105 United States v. Miller UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. 1 At a stated term of the United States Court of Appeals 2 for the Second Circuit, held at the Daniel Patrick Moynihan 3 United States Courthouse, 500 Pearl Street, in the City of 4 New York, on the 26th day of January, two thousand twelve. 5 6 PRESENT: DENNIS JACOBS, 7 Chief Judge, 8 RICHARD C. WESLEY, 9 SUSAN L. CARNEY, 10 Circuit Judges. 11 12 - - - - - - - - - - - - - - - - - - - -X 13 UNITED STATES OF AMERICA, 14 Appellee, 15 16 -v.- 10-5105 17 18 DAVID MILLER, 19 Defendant-Appellant. 20 - - - - - - - - - - - - - - - - - - - -X 21 22 FOR APPELLANT: James P. Egan, Research & 23 Writing Specialist (Lisa 24 Peebles, Federal Public 25 Defender, Melissa A. Tuohey, 26 Assistant Federal Public 27 Defender, on the brief), 28 Syracuse, New York. 1 1 FOR APPELLEE: Elizabeth S. Riker, Assistant 2 United States Attorney (Lisa M. 3 Fletcher, Assistant United 4 States Attorney, on the brief), 5 for Richard S. Hartunian, United 6 States Attorney for the Northern 7 District of New York, Syracuse, 8 New York. 9 10 Appeal from a judgment of the United States District 11 Court for the Northern District of New York (Suddaby, J.). 12 13 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED 14 AND DECREED that the judgment of the district court be 15 AFFIRMED. 16 17 18 David Miller appeals from a judgment of conviction, 19 following a guilty plea to one count of receipt and 20 distribution of child pornography and one count of 21 possession. We assume the parties’ familiarity with the 22 underlying facts, the procedural history, and the issues 23 presented for review. 24 25 Miller argues that there was nothing in the record to 26 support the finding that he had been viewing child 27 pornography since he was a teenager. Miller failed to 28 object at sentencing, must therefore show plain error, and 29 has not. See United States v. Bonilla,
618 F.3d 102, 111 30 (2d Cir. 2010). He admitted (on two occasions) to viewing 31 child pornography in his teens and apologized for continuing 32 to view it. 33 34 Miller argues that his 192-month sentence is 35 substantively unreasonable. But it is below the applicable 36 Guidelines range, and it falls “within the range of 37 permissible decisions.” See United States v. Rigas, 583
38 F.3d 108, 124 (2d Cir. 2009) (internal quotation marks 39 omitted). The discussion of the Sentencing Guidelines in 40 United States v. Dorvee,
616 F.3d 174, 184-88 (2d Cir. 41 2010), is not to the contrary. Miller possessed thousands 42 of images and videos of child pornography, some of which 43 depicted sexual violence and prepubescent children; and over 44 the course of at least twenty-three months, he received and 2 1 distributed the files to others through peer-to-peer 2 technology. 3 4 5 Finding no merit in Miller’s remaining arguments, we 6 hereby AFFIRM the judgment of the district court. 7 8 9 FOR THE COURT: 10 CATHERINE O’HAGAN WOLFE, CLERK 11 12 3
Document Info
Docket Number: 10-5105
Citation Numbers: 451 F. App'x 60
Judges: Jacobs, Wesley, Carney
Filed Date: 1/26/2012
Precedential Status: Non-Precedential
Modified Date: 11/5/2024