Argued: September 13, 2017
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)
Elizabeth Ray, OFFICE OF THE UNITED STATES ATTORNEY,
Asheville, North Carolina, for Appellant.
Brady Banzhoff, DEVEREUX & BANZHOFF, PLLC, Asheville,
North Carolina, for Appellee.
Westmoreland Rose, United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Charlotte, North Carolina, for
WILKINSON, Circuit Judge, NIEMEYER, Circuit Judge, and
Raymond A. JACKSON, United States District Judge for the
Eastern District of Virginia, sitting by designation.
and remanded by published opinion. Judge Niemeyer wrote the
opinion, in which Judge Wilkinson and Judge Jackson joined.
NIEMEYER, CIRCUIT JUDGE.
appeal, the government challenges as substantively
unreasonable the sentence imposed by the district court on
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.
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
we agree with the government in the particular circumstances
of this case, we vacate the district court's sentence and
remand for resentencing.
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 ...