11-2330-cr
United States v. Grieco


                               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
ASUMMARY 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 25th day of October, two thousand thirteen.

PRESENT: REENA RAGGI,
                 DENNY CHIN,
                 SUSAN L. CARNEY,
                                 Circuit Judges.
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UNITED STATES OF AMERICA,
                                 Appellee,

                          v.                                             No. 11-2330-cr

NICHOLAS GRIECO,
                                 Defendant-Appellant.
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FOR APPELLANT:                           James F. Greenwald, Assistant Federal Public Defender,
                                         James P. Egan, Research & Writing Attorney, for Lisa
                                         Peebles, Federal Public Defender, Syracuse, New York.

FOR APPELLEE:                            Lisa M. Fletcher, Elizabeth S. Riker, Assistant United
                                         States Attorneys, Of Counsel, for Richard S. Hartunian,
                                         United States Attorney for the Northern District of
                                         New York, Syracuse, New York.




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       Appeal from a judgment of the United States District Court for the Northern District of

New York (Norman A. Mordue, Judge).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment entered on May 25, 2011, is AFFIRMED.

       Defendant Nicholas Grieco, who stands convicted after pleading guilty to one count of

receiving child pornography, see 18 U.S.C. § 2252A(a)(2)(A), and one count of possessing

child pornography, see 18 U.S.C. § 2252A(a)(5)(B), challenges his 120-month prison

sentence, a variance from his Sentencing Guidelines range of 168 to 210 months, on the

ground of procedural error in the application of a distribution enhancement pursuant to

U.S.S.G. § 2G2.2.     We review claims of procedural error in sentencing for abuse of

discretion. See United States v. Cavera, 550 F.3d 180, 189 (2d Cir. 2008) (en banc). When

the procedural error pertains to Guidelines calculations, we review questions of law as to the

operation of the Guidelines de novo and findings of fact for clear error. See United States v.

Bonilla, 618 F.3d 102, 108 (2d Cir. 2010). We assume the parties’ familiarity with the facts

and record of prior proceedings, which we reference only as necessary to explain our decision

to affirm.

       Section 2G2.2(b)(3)(F) of the Guidelines provides a two-point increase in the base

offense level of child pornography crimes if the defendant distributed the material. Grieco

argues that the enhancement should not have applied to him because he “did not intend to

share the illicit images in question.” Appellant’s Br. 11. This argument is unavailing in

light of our recent decision in United States v. Reingold, – F.3d –, 2013 WL 5356875 (2d Cir.

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Sept. 26, 2013), which held that the distribution enhancement applies when a defendant

“knowingly plac[es] child pornography files in a shared folder on a peer-to-peer file-sharing

network . . . even if no one actually obtains an image from the folder.” Id. at *22 (internal

quotation marks and citation omitted).

       Here, Sergeant Anthony Martino, the Supervisor of the Management Information

Systems Unit for the City of Utica Police Department, conducted a forensic examination of

Grieco’s computers and testified that the two files of pornography at issue were located in a

computer folder from which images were “automatically [to] be shared back out.”

Sentencing Tr. at 26:2–4, App. 91. That same computer was set up to avoid the sharing of

other files. See id. at 31:14–21, App. 96. In these circumstances, even if Grieco routinely

moved child pornography out of shared folders, his maintenance of two files in a shared folder

supported application of the distribution enhancement and defeats his claim of procedural

error. We note, moreover, that at the same time the district court applied the enhancement, it

specifically cited the limited nature of Grieco’s distribution among the mitigating factors

supporting its reduced non-Guidelines sentence even though the defendant’s sexual

exploitation of children reached beyond pornography to actual physical abuse. See United

States v. Reingold, 2013 WL 5356875, at *23 (“While the district court is required correctly

to calculate and fairly consider the Guidelines, . . . nothing in this opinion is intended to limit

the district court’s discretion to consider a non-Guidelines sentence pursuant to United States

v. Booker, 543 U.S. 220, 245 (2005).”).




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      We have considered Grieco’s remaining arguments and conclude that they are without

merit. We therefore AFFIRM the judgment of the district court.

                                 FOR THE COURT:
                                 CATHERINE O’HAGAN WOLFE, Clerk of Court




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