UNITED STATES OF AMERICA v. JULIAN ALEXANDER ZUK
US Court of Appeals for the Fourth Circuit, Niemeyer, Oct. 24, 2017,
Child Pornography- Sentencing judge abused his discretion by sentencing the defendant to time served for a child pornography charge where he directed the sexual abuse of a 5 year-old and possessed and distributed tens of thousands of pieces of child pornography.
Facts:
From high school into college, Zuk began collecting and trading child pornography on the internet. Zuk developed “a particular interest in content that depicted the sadistic treatment of prepubescent children.” He created over 900 e-mail addresses for the purpose of contacting and trading child pornography with people he met online.
At one point, Zuk began communicating with “D.J.,” a 16-year-old from Texas who was sexually abusing his 5-year-old cousin. Zuk and D.J. began communicating daily and trading media, with Zuk giving D.J. directions regarding how to abuse his cousin and take pictures that Zuk enjoyed. Many of these involved the child being bound with tape or other restraints. Zuk began researching work in Texas so that he could be closer to D.J. and “participate in or observe the sexual abuse of the young child.”
In 2013, law enforcement conducted a knock and talk at Zuk’s dorm room. Zuk admitted to trading in child pornography and gave consent to search. LEO recovered over 13,000 photographs and 400 videos, including “graphic videos depicting adult men sexually assaulting young children.”
Zuk was indicted for transportation of child pornography, receiving child pornography, and possessing child pornography.
Zuk was released on bond and went to live with his parents while he received sex-offender treatment. However, his parents discovered that Zuk had obtained an iPad that he had used to view child pornography and communicate with minors. Based on these violations, Zuk was returned to custody.
Zuk pled guilty to possessing child pornography, in exchange for the government dropping the other charges. As part of his plea, Zuk agreed to waive his right to appeal.
Zuk’s recommended sentence range was 324 – 405 months. This exceeded the maximum of 240 months for the crime, so Zuk’s Sentencing Guidelines recommended sentence was the maximum for the crime: 240 months.
At sentencing, Zuk argued that he should be released from confinement because he was mildly autistic and could get treatment outside of prison. Zuk’s expert witness testified that Zuk was a “low risk” offender and that he would be vulnerable in a correctional facility.
The sentencing judge agreed with Zuk, varying downward by 24 offense levels and imposing a “time served” sentence (dropping 214 months below sentencing guidelines) to be followed by supervised release.
The government appealed, arguing that:
“Zuk is a pedophile, a sadist, and a recidivist who possessed more than 13,000 images of child pornography and who directed a 16-year-old boy’s sexual abuse of his five-year-old cousin for [his own] sexual gratification,” his “time-served sentence is lower than the sentence advised by the Sentencing Guidelines for a child-pornography-possession offense with no aggravating factors.” The government further maintains that the district court’s heavy reliance on Zuk’s autism spectrum disorder in fashioning his sentence was “misplaced,” emphasizing that “[t]here is no evidence that Zuk’s offenses were caused by his disorder”; that “Zuk is highly functioning in spite of his condition”; and that the “evidence presented to the district court established that Zuk could receive effective treatment within the Bureau of Prisons and that he had adapted well to confinement while awaiting his sentence.”
Held:
The 4th Circuit agreed with the government. The sentencing judge abused his discretion by focusing on treatment over other sentencing factors and considerations for a crime this severe. Sent back for resentencing.
Sentencing Factors (Federal) – (A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; (B) to afford adequate deterrence to criminal conduct; (C) to protect the public from further crimes of the defendant; and (D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner
Sentencing Considerations (Federal): (1) the nature of the offense and the defendant’s history and characteristics; (2) the kinds of sentences legally available; (3) the advisory sentencing range provided by the Sentencing Guidelines; (4) any relevant policy statement issued by the Sentencing Commission; (5) the need to avoid unwarranted sentence disparities; and (6) the need for restitution
Sentencing- A judge should not focus on a “single
Sentencing Guidelines- Sentencing Guidelines are not mandatory, but should be considered. Deviation from the guidelines should be explained.
Plea Agreements- Plea agreements do not need to be reciprocal as long as they are voluntary; a defendant can waive his right to appeal while the government maintains its right to appeal.