15-1675-cr 

United States v. DiProto

 

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. 

 At a stated Term of the United States Court of Appeals for the Second Circuit, held at the 

Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York on the 

29th day of April, two thousand sixteen. 

Present: ROSEMARY S. POOLER, 

 BARRINGTON D. PARKER, 

 DEBRA ANN LIVINGSTON, 

 Circuit Judges. 

_____________________________________________________ 

UNITED STATES OF AMERICA, 

 Appellee, 

 v. 15-1675-cr 

SAMUEL DIPROTO, 

 Defendant-Appellant. 

_____________________________________________________ 

 

Appearing for Appellant: Bruce D. Koffsky, Koffsky & Felsen, LLC, Stamford, CT. 

Appearing for Appellee: Neeraj N. Patel, Assistant United States Attorney, District of 

Connecticut (Mark T. Quinlivan, Assistant United States Attorney, 

District of Massachusetts, on the brief), for Loretta E. Lynch, 

United States Attorney General, and Carmen M. Ortiz, United 

States Attorney for the District of Massachusetts. 

Appeal from the United States District Court for the District of Connecticut (Meyer, J.). 
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ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, 

AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED. 

 Samuel DiProto appeals from the May 19, 2015 judgment entered in the United States 

District Court for the District of Connecticut (Meyer, J.). DiProto pleaded guilty to one count of 

receiving child pornography, in violation of 18 U.S.C. § 2252A(a)(2). The district court 

sentenced DiProto principally to 84 months’ imprisonment and 120 months of supervised 

release. On appeal, DiProto argues that the 84-month sentence is substantively unreasonable. We 

assume the parties’ familiarity with the underlying facts, procedural history, and specification of 

issues for review. 

 A sentence is substantively unreasonable if the sentence “‘shock[s] the conscience,’ 

constitutes a ‘manifest injustice,’ or is otherwise substantively unreasonable.” United States v. 

Aldeen, 792 F.3d 247, 255 (2d Cir. 2015) (alteration in original) (quoting United States v. Rigas, 

583 F.3d 108, 123 (2d Cir. 2009)). “Our review for substantive unreasonableness is ‘particularly 

deferential.’” Id. (quoting United States v. Broxmeyer, 699 F.3d 265, 289 (2d Cir. 2012)). “We 

will set aside sentences as substantively unreasonable only in exceptional cases where the trial 

court’s decision cannot be located within the range of permissible decisions, that is, when 

sentences 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.” Id. (citations and 

internal quotation marks omitted).

 DiProto’s 84-month sentence, which is below the guidelines range of 97-121 months and 

toward the low end of the 5-20 year statutory range, is substantively reasonable. “While we do 

not presume that a Guidelines sentence is necessarily substantively reasonable, that conclusion is 

warranted in the overwhelming majority of cases, and thus especially when, as here, a defendant 

challenges a below-Guidelines sentence.” United States v. Messina, 806 F.3d 55, 66 (2d Cir. 

2015) (citations and internal quotation marks omitted). DiProto admitted to downloading child 

pornography for a period of about four to five years, and a forensic examination of his computer 

hard drives and thumb drives revealed more than 1,800 images and 1,500 videos of child 

pornography, including images and videos depicting prepubescent minors engaged in sexually 

explicit conduct and images and videos depicting sadistic and masochistic conduct. One of 

DiProto’s devices also contained non-pornographic images of a young girl bound with rope and 

gagged in what appeared to be DiProto’s bedroom. Under the circumstances, DiProto’s 84-

month sentence does not fall outside the range of permissible decisions. 

 Nor do we agree with DiProto’s contention that the district court overlooked various 

mitigating factors. The sentencing transcript belies it. The district court expressly stated that it 

saw as a mitigating factor the fact that DiProto did not produce or distribute child pornography 

and that it was impressed by his immediate acceptance of responsibility. The fact that the district 

court imposed a below-guidelines sentence further suggests that the court took these mitigating 

factors into account in determining DiProto’s sentence. 
 3

 We have considered the remainder of DiProto’s arguments and find them to be without 

merit. Accordingly, the order of the district court hereby is AFFIRMED. 

 FOR THE COURT: 

 Catherine O’Hagan Wolfe, Clerk