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 ELECTRON IC 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 29 th 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. Koffs ky, Koffsky & Felsen, LLC, Stamford, CT.

Appearing for Appellee: Neeraj N. Patel, Assistant United States Attorney, District of Connecticut (Mark T. Quinlivan, A ssistant 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 Di strict of Massachusetts.

Appeal from the United States District Cour t for the District of Connecticut (Meyer, J. ).2 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 vi olation 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 argue s 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 substa ntively unreasonable.” United States v. Aldeen, 792 F.3d 247, 255 (2d Cir. 2015) (alt eration 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 ra nge of permissible deci sions, that is, when sentences are so shockingly high, shockingly low, or otherwise unsupportable as a matter of law that allowing them to stand would da mage the administration of justice.” Id. (citations and internal quotation marks omitted).

DiProto’s 84-month sentence, which is belo w the guidelines range of 97-121 months and toward the low end of the 5-20 ye ar statutory range, is substan tively reasonable. “While we do not presume that a Guidelines sentence is necessari ly substantively reasonabl e, that conclusion is warranted in the overwhelming majo rity of cases, and thus especia lly 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 fo ur to five years, and a forens ic examination of his computer hard drives and thumb drives revealed mo re than 1,800 images and 1,500 videos of child pornography, including images and videos depi cting prepubescent minors engaged in sexually explicit conduct and images and videos depic ting sadistic and masoch istic conduct. One of DiProto’s devices also contai ned non-pornographic images of a young girl bound with rope and gagged in what appeared to be DiProto’s be droom. Under the circumstances, DiProto’s 84- month sentence does not fall outside th e range of permissible decisions.

Nor do we agree with DiProto’s contention that the district c ourt overlooked various mitigating factors. The sentencing transcript belies it. The district court expressly stated that it saw as a mitigating factor the fact that DiPr oto 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 furthe r suggests that the court took these mitigating factors into account in dete rmining DiProto’s sentence.3 We have considered the remainder of DiPr oto’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