16-764-cr
United States v. Vado


16-764-cr
United States v. Vado

                                    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 21st day of March, two thousand seventeen.

PRESENT:                JOSÉ A. CABRANES,
                        RICHARD C. WESLEY,
                                     Circuit Judges,
                        VICTOR MARRERO,
                                     District Judge.*


UNITED STATES OF AMERICA,

                               Appellee,                       16-764-cr

                               v.

MATTHEW VADO,

                               Defendant-Appellant.


FOR APPELLEE:                                               Max Nicholas and Margaret Garnett,
                                                            Assistant United States Attorneys, for
                                                            Preet Bharara, United States Attorney for
                                                            the Southern District of New York, New
                                                            York, NY.


     *
    Victor Marrero, Judge of the United States District Court for the Southern District of New
York, sitting by designation.

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United States v. Vado




FOR DEFENDANT-APPELLANT:                                      Darrell B. Fields, Federal Defenders of
                                                              New York, Inc., New York, NY.

       Appeal from an order of the United States District Court for the Southern District of New
York (Paul A. Engelmayer, Judge).

        UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the March 11, 2016 judgment of the District Court be and
hereby is AFFIRMED.

        Defendant-appellant Matthew Vado appeals from a judgment of conviction entered on
March 11, 2016, pursuant to a plea of guilty to all ten counts of a ten-count indictment charging him
with eight counts of producing child pornography, in violation of 18 U.S.C. §§ 2251(a), (e), and 2,
one count of receiving child pornography, in violation of 18 U.S.C. §§ 2252A(a)(2)(B), (b)(1), and 2,
and one count of possessing child pornography, in violation of 18 U.S.C. §§ 2252A(a)(5)(B), (b)(2),
and 2. The District Court sentenced Vado to thirty years’ imprisonment.

        On appeal, Vado argues that his sentence was both procedurally and substantively
unreasonable. He contends that the District Court committed procedural error by failing to address
adequately his arguments explaining why a fifteen-year sentence, rather than a thirty-year sentence,
was sufficient to meet the goals of sentencing. And, he asserts that his sentence was substantively
unreasonable because it was greater than necessary under the circumstances presented. We assume
the parties’ familiarity with the underlying facts and the procedural history of the case.

         We review sentences “for abuse of discretion, a standard that ‘incorporates de novo review
of questions of law (including interpretation of the [Sentencing] Guidelines) and clear-error review
of questions of fact.’” United States v. Bonilla, 618 F.3d 102, 108 (2d Cir. 2010) (quoting United States v.
Legros, 529 F.3d 470, 474 (2d Cir. 2008)) (alteration in original). There are two components to our
review: procedural and substantive. Id. A district court commits procedural error “where it fails to
calculate the Guidelines range,” “makes a mistake in its Guidelines calculation, or treats the
Guidelines as mandatory,” “does not consider the § 3553(a) factors,” “rests its sentence on a clearly
erroneous finding of fact,” or “fails adequately to explain its chosen sentence.” United States v. Cavera,
550 F.3d 180, 190 (2d Cir. 2008) (en banc). A sentence is substantively unreasonable “only if it
cannot be ‘located within the range of permissible decisions.’” Bonilla, 618 F.3d at 108 (quoting
Cavera, 550 F.3d at 189). Our review for substantive reasonableness is “deferential.” Cavera, 550 F.3d
at 191.

        Vado asserts that the District Court committed procedural error by failing to explain
sufficiently why it rejected three arguments raised by defense counsel in favor of a fifteen-year
sentence: (1) that the possibility of civil commitment after Vado’s release from custody made a
fifteen-year sentence adequate; (2) that Vado’s exemplary conduct while in custody merited serious

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United States v. Vado


consideration; and (3) that the Guidelines governing sentencing for the production of child
pornography are flawed. His argument is unavailing.

         The District Court explained the reasons for its sentence in painstaking detail, describing
specifically the seriousness of Vado’s offense, the nature and circumstances of his offense, the need
for specific and general deterrence, and the interest in public protection. It also stated that it had
reviewed a representative sample of the sexually explicit materials involved in Vado’s case, the
Presentence Report (the “PSR”), the parties’ sentencing submissions, psychological reports on Vado,
and victim impact statements. Contrary to Vado’s contention on appeal, the law in this circuit does
not “require[ ] a District Court to make specific responses to points argued by counsel in connection
with sentencing.” Bonilla, 618 F.3d at 111. Rather, a district court need only “satisfy us . . . that it has
considered the party’s arguments and has articulated a reasonable basis for exercising its decision-
making authority.” Id. Based on our review of the record, we are satisfied that the District Court
considered all of Vado’s arguments, including the three mentioned on appeal, and articulated with
great clarity a reasonable basis for its sentence.

         Vado’s argument that his thirty-year sentence is substantively unreasonable similarly fails. He
contends that his sentence was greater than necessary for a number of reasons, including: (1) that his
prior conviction involving exposing himself to minor girls and masturbating in a car in front of them
resulted in only fifteen days in jail and a five-year period of probation; (2) that his post-arrest
conduct was exemplary; (3) that his psychiatric evaluations revealed that he had only a secondary
interest in females ages six to thirteen, that he posed a moderate risk of reoffending, and that he was
a low to moderate risk of committing a contact sexual offense; (4) that the Guidelines were flawed;
and (5) that he faced the possibility of civil commitment after being released from prison on any
shorter sentence. We disagree.

         Vado faced a mandatory minimum sentence of fifteen years’ imprisonment and the
recommended sentence under the Guidelines was life imprisonment. The District Court selected a
middle-of-the-road option and imposed a substantially below-the-Guidelines sentence of thirty
years’ imprisonment, which matched the probation office’s recommendation. The District Court
articulated a number of reasons for imposing its sentence. For example, it recognized that Vado’s
conduct involved thirteen identified minor victims, including a nine-year old girl, and that he
extorted sexually explicit images from his minor victims by threatening to publicize sexually explicit
images of them that were already in his possession. It also considered the fact that Vado’s conduct
reflected planning and deliberation and concluded that the need for “incapacitation” was “the single
most influential factor” in this case because of Vado’s “proclivity to commit sex crimes against
children.” App’x 235. Although a thirty-year sentence is undoubtedly severe, given the seriousness
of Vado’s conduct, we cannot say that the District Court’s sentence is not “within the range of
permissible decisions.” Cavera, 550 F.3d at 189 (internal quotation marks omitted); see United States v.



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United States v. Vado


Brown, 843 F.3d 74, 82–83 (2d Cir. 2016) (affirming a sixty-year sentence for the production of child
pornography); see also id. at 84 (Sack, J. concurring).

                                         CONCLUSION

        We have considered all of the arguments raised by defendant-appellant on appeal and find
them to be without merit. For the foregoing reasons, we AFFIRM the March 11, 2016 judgment of
the District Court.

                                                      FOR THE COURT:
                                                      Catherine O’Hagan Wolfe, Clerk




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