23-7677-cr United States v. Macko

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 29th day of October, two thousand twenty-four.

PRESENT: RICHARD C. WESLEY, DENNY CHIN, MARIA ARAÚJO KAHN, Circuit Judges. __________________________________________

UNITED STATES OF AMERICA,

Appellee,

v. 23-7677

JAMES MACKO,

Defendant-Appellant. ___________________________________________

FOR DEFENDANT-APPELLANT: James P. Egan, Office of the Federal Public Defender, Syracuse, NY. FOR APPELLEE: Joshua Rothenberg, Benjamin Clark, Assistant United States Attorneys, for Carla B. Freedman, United States Attorney for the Northern District of New York, Syracuse, NY.

Appeal from the November 2, 2023 judgment of the United States District Court

for the Northern District of New York (Anne M. Nardacci, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment entered on November 2, 2023, is AFFIRMED.

Defendant-Appellant James Macko (“Macko”) appeals from the district court’s

judgment of conviction following his guilty plea to one count of attempted coercion and

enticement of a minor, in violation of

(b). Macko’s conviction stems from

his communications—and, eventually, plans to engage in sexual conduct—with law

enforcement officers posing as a father and his preteen son. The district court sentenced

Macko principally to 168 months’ imprisonment. On appeal, Macko contends that his

sentence is substantively unreasonable. We assume the parties’ familiarity with the

underlying facts, the procedural history, and the issues on appeal, to which we refer only

as necessary to explain our decision to affirm.

Macko’s substantive reasonableness claim is reviewed under a “deferential abuse-

of-discretion standard.” 1 United States v. Cavera,

(2d Cir. 2008) (en banc)

1Macko failed to raise a substantive reasonableness challenge below, and “[w]e have not decided whether plain error review applies to an unpreserved challenge to the substantive 2 (quoting Gall v. United States,

(2007)). Under that standard, a district court

errs where the sentence imposed “cannot be located within the range of permissible

decisions.” United States v. Davis,

(2d Cir. 2023) (quoting United States v.

Chu,

(2d Cir. 2013) (per curiam)). That occurs when a sentence is

“shockingly high, shockingly low, or otherwise unsupportable as a matter of law.”

at

200 (quoting United States v. Rigas,

(2d Cir. 2009)). Even though a within-

Guidelines sentence is not per se reasonable, we have “recognize[d] that in the

overwhelming majority of cases,” a sentence that falls within the Guidelines will be

comfortably “within the broad range of sentences that would be reasonable in the

particular circumstances.” United States v. Ryan,

(2d Cir. 2015) (quoting

United States v. Ingram,

(2d Cir. 2013) (per curiam)).

Macko argues that his 168-month sentence—which fell at the very bottom of the

applicable Guidelines range of 168 to 210 months’ imprisonment—is substantively

unreasonable because the district court placed undue weight on the danger Macko posed

to children and society as a whole. Although Macko stipulated to the application of a

sentencing enhancement for offenses involving a minor younger than twelve, 2 he asserts

reasonableness of a sentence.” United States v. Thavaraja,

, 258 n.4 (2d Cir. 2014). We need not resolve this question here, however, as Macko’s claim fails under either standard of review.

2Macko avers that, because law enforcement changed the preteen’s age from twelve to eleven partway through its operation, his Guidelines range was artificially increased from 70 to 87 months’ imprisonment to 168 to 210 months’ imprisonment. That is not accurate. A violation 3 that his sentence does not properly account for his conduct and the unique circumstances

of his case. We disagree.

“The particular weight to be afforded aggravating and mitigating factors is a

matter firmly committed to the discretion of the sentencing judge.” United States v.

Broxmeyer,

(2d Cir. 2012) (internal quotation marks and citation omitted).

In conducting our reasonableness review, this Court does not contemplate what weight

we would assign a given factor, but instead we assess whether the district court’s reliance

on a particular factor “can bear the weight assigned it under the totality of circumstances

in the case.” Cavera,

. When reaching that determination, this Court must

bear in mind that “facts may frequently point in different directions so that even

experienced district judges may reasonably differ, not only in their findings of fact, but

in the relative weight they accord competing circumstances.” Broxmeyer,

(quoting United States v. Jones,

(2d Cir. 2008)). These reasonable

differences result in a range of reasonable sentences, which “frequently extend[] well

beyond the narrow ranges prescribed by the Guidelines.” Jones,

.

Here, the district court’s assessment of the need to protect the public from Macko’s

of § 2422(b) carries a mandatory minimum sentence of 120 months’ imprisonment. See

(b). Thus, if the undercover officer had not changed the boy’s supposed age and the sentencing enhancement was not applicable, Macko’s Guidelines sentence would have been 120 months’ imprisonment. See U.S.S.G. § 5G1.1(b) (“Where a statutorily required minimum sentence is greater than the maximum of the applicable guideline range, the statutorily required minimum sentence shall be the guideline sentence.”). 4 future crimes can bear the weight assigned to it. See Cavera,

. It is certainly

true that Macko had no history of sex offenses against children, did not possess child

pornography, and was not scouring the internet for children when he unwittingly

contacted law enforcement. It also appears true that, at the time of law enforcement’s

operation, Macko was in the throes of a mental health crisis exacerbated by his

longstanding battle with addiction. But these mitigating circumstances do not mean that

the district court’s assessment of Macko’s future dangerousness cannot bear the weight

assigned to it. See

Macko repeatedly discussed getting an eleven-year-old boy

intoxicated and raping him, and then arrived at their planned rendezvous with the

supplies necessary to do exactly that. For approximately two weeks, Macko reiterated

his sexual interest in the preteen, including by sharing photographs, videos, and lurid

descriptions of the forcible acts he wished to perform on the boy.

As in many cases, there are facts here that point in different directions. See

Broxmeyer,

. Even if this Court might assign a different weight to a

particular

(a) factor in the first instance, that is not the role of an appellate

court in reviewing the reasonableness of a sentence. See Thavaraja,

. In this

case, the record demonstrates that the district court carefully considered the relevant

factors—including Macko’s mitigating circumstances—and did not assign undue weight

to the need to protect the public from the risk of Macko’s future crimes. For that reason,

we also reject Macko’s contention that his sentence is substantively unreasonable because

5 his conditions of supervised release “obviat[ed] the need for a lengthy sentence” of

incarceration. Appellant Br. 21.

Moreover, as the district court pointed out and as Macko does not dispute, he

“very enthusiastically[] affirmed his interest in the child” after learning the boy was

eleven years old, and he “only took substantial steps towards the completion of the

offense after [he was] told” that the boy was not yet twelve. App’x 149–50. Based on

these facts, it was not unreasonable for the district court to conclude that the Guidelines

range—including the stipulated-to sentencing enhancement—was apt, and that the low

end of that range appropriately reflected the gravity of Macko’s conduct.

Under this Court’s deferential review, there is no basis to conclude that Macko’s

168-month sentence is outside the range of permissible decisions. See Davis,

. Accordingly, we reject his substantive reasonableness challenge and affirm the

judgment of the district court.

* * *

We have considered Macko’s remaining arguments and conclude that they are

without merit. For the reasons set forth above, we AFFIRM the judgment of the district

court.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court

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