United States v. Miller

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.
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13 UNITED STATES OF AMERICA,
14 Appellee,
15
16 -v.- 10-5105
17
18 DAVID MILLER,
19 Defendant-Appellant.
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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
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