The Akron Legal News

Man who downloaded child porn loses appeal for shorter sentence

ANNIE YAMSON
Special to the Legal News
Published: November 5, 2014

In the 6th U.S. Circuit Court of Appeals, a panel of three judges recently affirmed the judgment of the U.S. District Court for the Northern District of Ohio in a child pornography case.

The defendant, Richard Miezin, pleaded guilty to a child pornography charge after federal law enforcement officers downloaded images and video files depicting minors engaged in sexually explicit conduct from his computer.

From April 27, 2010 through Feb. 25, 2011, the officers downloaded files from Miezin’s computer on 11 separate occasions using a peer-to-peer file-sharing program known as Gigatribe.

After executing a search warrant, the officers seized Miezin’s computer and found that it contained approximately 35 photographs and 17 videos of child porn, the equivalent of 1,275 images.

Miezin entered into a plea agreement instead of going to trial with the stipulation that his offense level would be 34, according to the U.S. Sentencing Guidelines, with a criminal history category of I resulting in an advisory sentencing range of 151 to 188 months’ imprisonment.

Case summary states that a U.S. probation officer then submitted a presentence investigation report.

The officer recommended a five-level “thing of value” enhancement, unlike the plea agreement in which the government only recommended a two-level distribution enhancement.

In support of his recommendation, the probation officer argued that Miezin “intentionally sought out child pornography material through chat conversations or by viewing other Gigatribe users’ shared folders and selecting images and video files that fell into those categories.”

The PSR included a calculation for a total offense level of 37 resulting in a sentencing range of 210 to 240 months’ imprisonment.

Miezin requested that the district court grant a downward variance to the sentence discussed in his plea agreement, but the court rejected his request, ruling that a “lengthy sentence” would be necessary to effect adequate deterrence.

The government argued that “the harm caused by child pornography is not because money is exchanged but because children are the commodity that is bargained and exchanged.”

At Miezin’s sentencing hearing, the trial court acknowledged the plea agreement but accepted the PSR’s recommended five-level enhancement.

“Specifically, the court rejected Miezin’s argument that an explicit quid pro quo - not merely hoping to receive child pornography as a barter — is necessary in order for the (five-level enhancement) to apply,” wrote Judge Bernice Donald in the opinion she authored on behalf of the court of appeals.

The district court highlighted Miezin’s chat conversations that he conducted through Gigatribe.

In one explicit exchange, a user asked him, “Any baby pics?”

Miezin responded by sending an image of a prepubescent male engaged in intercourse.

“Mmm nice, reminds me of the last baby boy I (had intercourse with),” the other use responded.

Miezin then asked for pictures in return.

Though the government agreed with the trial court’s acceptance of the five-level enhancement, it requested that the trial court respect the plea agreement and the lower sentence recommended therein.

The trial court then applied a two-level “thing of value” enhancement and imposed a sentence of 168 months in prison, which was within the range recommended in the plea agreement.

Nevertheless, Miezin’s appeal centered on his allegations that the government breached the plea agreement.

He argued that the government should not have argued that he distributed child pornography with the expectation of receiving something in return which subjected him to the possible five-level enhancement.

The government responded to Miezin’s argument on appeal by noting that it did not request a such an enhancement but merely defined it in its sentencing memorandum.

“The record supports the government’s argument,” wrote Judge Donald. “There is no indication anywhere in the memorandum that the government was asking the district court to apply a five-level enhancement contrary to the two-level enhancement to which the parties agreed.”

The appellate panel noted that the government did respond to Miezin’s request for a downward variance and argued against it.

However, the court of appeals ruled that the government was simply seeking to ensure that Miezin did not receive a sentence “tantamount to a mere slap on the wrist” but rather, a sentence “within the properly calculated guidelines range” of 151 to 188 months.

Miezin went on to argue that the government should not have argued for a harsher sentence and that he should not have been subject to a two-level enhancement.

However, the appellate panel found little merit to his claims and ultimately ruled that the district court imposed the proper sentence.

Judges Martha Daughtrey and John Rogers joined Judge Donald to affirm the judgment of the lower court.

The case is cited United States v. Miezin, Case No. 13-4219.

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