     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




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