                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 12a1057n.06

                                            No. 11-2185

                           UNITED STATES COURT OF APPEALS                                 FILED
                                FOR THE SIXTH CIRCUIT                                  Oct 05, 2012
                                                                                DEBORAH S. HUNT, Clerk
UNITED STATES OF AMERICA,                             )
                                                      )
       Plaintiff-Appellee,                            )
                                                      )      ON APPEAL FROM THE
v.                                                    )      UNITED STATES DISTRICT
                                                      )      COURT FOR THE EASTERN
ROBERT M. PIZZINO,                                    )      DISTRICT OF MICHIGAN
                                                      )
       Defendant-Appellant.                           )
                                                      )



       BEFORE: GUY, DAUGHTREY, and STRANCH, Circuit Judges.


       PER CURIAM: Robert M. Pizzino, a federal prisoner, appeals the sentence the district court

imposed on remand following Pizzino’s guilty plea to a charge of distribution of child pornography.

       The district court initially imposed a sentence of 180 months of imprisonment in 2009. On

appeal, we vacated the sentence for procedural error because the district court did not expressly

address Pizzino’s non-frivolous arguments for leniency, including a limited criminal history,

extensive rehabilitative efforts, and a low risk of recidivism. United States v. Pizzino, 419 F. App’x

579, 584–85 (6th Cir. 2011).

       On remand, the district court conducted a new sentencing hearing and addressed each of

Pizzino’s asserted grounds for leniency. We review the reasonableness of a criminal sentence under

an abuse-of-discretion standard. United States v. Presley, 547 F.3d 625, 629 (6th Cir. 2008).

       With regard to criminal history, the district court noted that the only conviction on Pizzino’s

criminal record stemmed from a contemporaneous prosecution of Pizzino in state court for engaging
No. 11-2185
United States of America v. Pizzino

in repetitive sexual contact with the minor daughter of a neighbor. On defense counsel’s request that

the federal and state courts coordinate the sentences on the child pornography and sexual contact

offenses, the district court contacted the state court judge and reached an agreement whereby the

district court sentenced Pizzino first so that only one criminal history point was assigned to Pizzino’s

state conviction. In addition, the state court judge imposed a sentence on the sexual contact charge

to run concurrently with the federal sentence. Thus, not only did the district court take Pizzino’s

criminal history into account at sentencing, but the court actively took steps to mitigate the effect of

Pizzino’s state conviction on his federal sentencing. Further, the district court showed leniency in

sentencing when it declined to impose a five-level enhancement to the base offense level under

U.S.S.G. § 2G2.2(b)(5) for “engag[ing] in a pattern of activity involving the sexual abuse or

exploitation of a minor[.]” Because the state prosecuted Pizzino for sexually abusing the minor, the

district court decided that it would be unfair to increase Pizzino’s federal sentence based on the same

conduct. These efforts to show Pizzino leniency do not approach procedural or substantive error in

sentencing.1


       1
          At the re-sentencing hearing, the district court observed that Pizzino’s guideline range would
have climbed much higher, from 262 to 327 months as calculated by the probation officer, to 292
to 365 months, if the district court had not coordinated the federal and state sentences so that
Pizzino’s federal criminal history category remained at I instead of II. The court’s statement was
incorrect because it did not take into account the effect of the statutory maximum sentence for
Pizzino’s crime, which was 20 years, or 240 months.
         The probation officer acknowledged in the Presentence Report that the minimum of the
calculated guideline range of 262 to 327 months exceeded the statutory maximum sentence of 240
months. PSR ¶ 57. Therefore, under U.S.S.G. § 5G1.1(a), the statutory maximum sentence became
the guideline sentence. Any upward change in the criminal history category would have had no
effect because the guideline sentence could not have exceeded 240 months.
         Pizzino claims that the court’s statements amount to reversible error, relying on United States
v. Dorvee, 616 F.3d 174 (2d Cir. 2010). Pizzino did not preserve this error by objecting in the
district court, so we review only for plain error and find none. See id. at 179.

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United States of America v. Pizzino

       With regard to Pizzino’s efforts at rehabilitation and his risk of recidivism, the district court

explained what it knew and considered at the time of the initial sentencing. The court stated that it

knew Pizzino sought sex offender treatment after his arrest on the child pornography charge. The

court considered a written report submitted by Pizzino’s therapist. Although Pizzino attended

numerous therapy sessions, the court placed greater weight on the fact that Pizzino did not seek

treatment until after he was arrested and faced criminal prosecution. The court also did not accept

the therapist’s opinion that Pizzino posed a low risk of recidivism because the court knew that

Pizzino had engaged in sexual contact with a minor female in addition to distributing child

pornography.

       At the re-sentencing hearing, the district court heard Pizzino’s therapist testify. The court

engaged in an extensive dialogue with the witness, but ultimately remained firm in the decision to

reject the therapist’s opinion that Pizzino posed a low risk of recidivism. The court found that

Pizzino’s manipulative and repetitive sexual assault of the minor female presented a clearer




         In Dorvee, the district court, like the court here, labored under the misconception that the
guideline range was either 262 to 327 months or 292 to 365 months, even though the statutory
maximum of 240 months was the guideline sentence under § 5G1.1(a). But in Dorvee, the district
court treated the imposed sentence of 233 months (240 months less credit for time served) as a more
lenient below-guidelines sentence, when in fact it was a not. The situation before us is different.
The district court did not sentence Pizzino to 240 months and treat it as a below-guidelines sentence.
Rather, the court declined to impose the five-level enhancement under § 2G2.2(b)(5) that was
recommended by the probation officer and accordingly lowered the applicable guideline range to
151 to 188 months. The court then imposed a within-guidelines sentence of 180 months. As the
district court pointed out, if the court had imposed the five-level enhancement, Pizzino would have
faced a sentence of 240 months, 60 months higher than the actual sentence of 180 months. In this
respect, the district court did show Pizzino leniency. Thus, we find no plain error requiring reversal
on this issue.



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United States of America v. Pizzino

indication of the future risk of harm Pizzino likely posed than did the opinion of Pizzino’s therapist.

Having reviewed the record thoroughly, we do not find any procedural or substantive error in the

district court’s consideration of Pizzino’s rehabilitative efforts or the opinion of Pizzino’s therapist.

        We rejected in the earlier appeal Pizzino’s argument that the sentencing guidelines for child

pornography offenses should not be presumed reasonable. Our prior opinion states the law of the

case. See United States v. Walls, 546 F.3d 728, 740 (6th Cir. 2008).

        Finally, Pizzino argues that the district court accorded too much weight to the sentencing

factor of protecting the public, while other sentencing factors counseling leniency were ignored.

Having reviewed the sentencing transcript, we conclude that the district court adequately considered

the § 3553(a) sentencing factors and gave ample reasons for rejecting Pizzino’s arguments for further

leniency. See Rita v. United States, 551 U.S. 338, 358–59 (2007).

        Finding no abuse of discretion, we affirm the district court’s judgment.




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