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United States v. Zuk

United States Court of Appeals, Fourth Circuit

October 24, 2017

UNITED STATES OF AMERICA, Plaintiff - Appellant,
v.
JULIAN ALEXANDER ZUK, Defendant-Appellee.

          Argued: September 13, 2017

         Appeal from the United States District Court for the Western District of North Carolina, at Statesville. Richard L. Voorhees, District Judge. (5:13-cr-00059-RLV-DCK-1)

         ARGUED:

          Amy Elizabeth Ray, OFFICE OF THE UNITED STATES ATTORNEY, Asheville, North Carolina, for Appellant.

          Andrew Brady Banzhoff, DEVEREUX & BANZHOFF, PLLC, Asheville, North Carolina, for Appellee.

         ON BRIEF:

          Jill Westmoreland Rose, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellant.

          Before WILKINSON, Circuit Judge, NIEMEYER, Circuit Judge, and Raymond A. JACKSON, United States District Judge for the Eastern District of Virginia, sitting by designation.

         Vacated and remanded by published opinion. Judge Niemeyer wrote the opinion, in which Judge Wilkinson and Judge Jackson joined.

          NIEMEYER, CIRCUIT JUDGE.

         In this appeal, the government challenges as substantively unreasonable the sentence imposed by the district court on Julian Zuk.

         Zuk was indicted on seven counts for transmitting, receiving, and possessing child pornography. The undisputed evidence shows that before his arrest, Zuk amassed more than 13, 800 photographs and more than 470 videos, a large proportion of which depicted the sadistic treatment of young children. He also communicated on a daily basis with a 16-year-old who was sexually abusing his 5-year-old cousin and even directed the 16-year-old to abuse the child in specific, sadistic ways. Pursuant to a plea agreement, Zuk pleaded guilty to one count of possessing child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B). Because the Sentencing Guidelines' recommendation for Zuk's relevant conduct substantially exceeded 240 months' imprisonment, which was the maximum sentence for possession, the 240-month term became the Guidelines' recommended sentence.

         Following a lengthy sentencing hearing during which Zuk's recently diagnosed autism spectrum disorder was explained, the district court sentenced Zuk to time served of 26 months, reciting Zuk's disorder as the "primary driver" behind the sentence. On appeal, the government states:

The time-served sentence Zuk received is substantively unreasonable because it creates unwarranted sentence disparities and fails to provide just punishment or adequate deterrence in light of the seriousness of Zuk's offense conduct. 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 Zuk's sexual gratification. Yet Zuk's time-served sentence is lower than the sentence advised by the Sentencing Guidelines for a child-pornography-possession offense with no aggravating factors.

         Because we agree with the government in the particular circumstances of this case, we vacate the district court's sentence and remand for resentencing.

         I

         When Julian Zuk was a high-school sophomore in Asheville, North Carolina, he found a photo-sharing website that hosted images of nude minors and minors in bondage. Using a school laptop and a flash drive, he began to view and download these images, and he continued to do so through his junior and senior years of high school. After graduating in the middle of his high school class, Zuk enrolled at Appalachian State University in the fall of 2012. Over the course of his freshman year, he spent an increasing amount of time acquiring child pornography, developing a particular interest in content that depicted the sadistic treatment of prepubescent children. When he realized that he could obtain more illicit material by trading images via email with people he had met online, he created hundreds of ...


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