23-6165 United States v. Moussa

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 TO 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 4th day of November, two thousand twenty-four.

PRESENT:

AMALYA L. KEARSE, RICHARD J. SULLIVAN, BETH ROBINSON, Circuit Judges. _____________________________________

UNITED STATES OF AMERICA,

Appellee,

v. No. 23-6165

SAEED MUSTAPHA MOUSSA,

Defendant-Appellant. _____________________________________ For Defendant-Appellant: James M. Branden, Law Office of James M. Branden, Staten Island, NY.

For Appellee: Nancy V. Gifford, Sandra S. Glover, Assistant United States Attorneys, for Vanessa Roberts Avery, United States Attorney for the District of Connecticut, New Haven, CT.

Appeal from a judgment of the United States District Court for the District

of Connecticut (Sarah A. L. Merriam, Judge).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the February 14, 2023 judgment of the district

court is AFFIRMED.

Saeed Mustapha Moussa appeals from his sentence following his guilty plea

to production of child pornography in violation of

(a). The

district court sentenced Moussa to a term of 274 months’ imprisonment – well

below the 360-month sentence prescribed by the advisory United States

Sentencing Guidelines – to be followed by a lifetime term of supervised release.

On appeal, Moussa contends that his below-Guidelines sentence was

substantively unreasonable. We assume the parties’ familiarity with the

underlying facts, procedural history, and issues on appeal.

2 We review the substantive reasonableness of Moussa’s sentence for abuse

of discretion. See United States v. Thavaraja,

(2d Cir. 2014). A

sentence is “substantively unreasonable only in exceptional cases where the trial

court’s decision cannot be located within the range of permissible decisions,” such

as where the sentence is “so shockingly high, shockingly low, or otherwise

unsupportable as a matter of law that allowing [it] to stand would damage the

administration of justice.”

(internal quotation marks omitted). “[I]n

the overwhelming majority of cases, a Guidelines sentence will fall comfortably

within the broad range of sentences that would be reasonable in the particular

circumstances,” though there is no “presumption, rebuttable or otherwise, that a

Guidelines sentence is reasonable.” United States v. Fernandez,

(2d

Cir. 2006).

The record reflects that the district court carefully applied each of the

sentencing factors under

(a), specifically noting that “all of the

purposes of a criminal sentence are important in this case.” App’x at 378

(emphasis added). In addition, while under no obligation to do so, the district

court considered a set of ten factors identified by Judge Stefan R. Underhill in his

dissent in United States v. Muzio,

, 67–79 (2d Cir. 2020), which were

3 designed to guide courts in assessing the relative seriousness of child pornography

production offenses. 1

The district court gave due weight to Moussa’s mitigating circumstances, as

reflected in its imposition of a below-Guidelines sentence. Among other things,

the court acknowledged Moussa’s difficult upbringing in Ghana, his own history

as a victim of childhood sexual abuse, and how his experience growing up in a

community where the sexual abuse of children was widely tolerated may have

shaped his views about the treatment of children. The court also credited his

history of mental illness, even though the details of that illness were “unclear.”

App’x at 384. The court weighed his first-time offender status and emphasized

that this was the rare case in which the child pornography in question was

produced with no evidence of distribution. The district court also acknowledged

that the time Moussa had already served in prison in connection with his parallel

state conviction for sexual assault had been particularly harsh as a result of the

conditions that accompanied the COVID-19 pandemic and on account of his sex-

1 Those ten factors are: (1) whether “the defendant engage[d] in violence”; (2) “the nature of the

sexual contact involved”; (3) “[h]ow [ ] the pornography [was] produced”; (4) “the extent of the distribution or use of the images”; (5) whether “the defendant engage[d] in deceit or trickery”; (6) “[h]ow many films or images [ ] the defendant create[d]”; (7) “[t]he age” of the victim; (8) “[t]he number of victims”; (9) the “relationship/responsibility [that] the defendant ha[d] vis-à-vis the victim”; and (10) “the intellectual capacity of the victim.” Muzio,

.

4 offender status, which had resulted in him being assaulted twice while in prison.

The court specifically reduced Moussa’s sentence by 24 months to account for that

time in state custody, and by another two months in anticipation of the time

Moussa will likely spend in immigration custody while awaiting deportation after

his release from federal prison.

Nonetheless, the district court concluded that the aggravating factors

weighed against a greater downward variance. In particular, the court noted that

Moussa’s production of child pornography involved deceiving the family who

had entrusted their then six-year-old child into his care for approximately two

years. The court also remarked upon the seriousness of the offense, which

involved the video recording of repeated acts of sexual abuse of the young child,

including oral and vaginal penetration, at times in front of the victim’s other young

siblings. And after considering Moussa’s remarks at his sentencing, the district

court expressed grave concern as to whether Moussa had “fully absorbed just how

wrong his actions were.”

Moussa does not identify a single case where a defendant received a lower

sentence for similar conduct – let alone a collection of sentences that would render

Moussa’s sentence “shockingly high.” Thavaraja,

(internal

5 quotation marks omitted). In contrast, we have acknowledged that “[c]hild

pornography production offenses are extremely serious and ordinarily warrant

significantly harsher punishment than possession or even distribution offenses.”

Muzio,

. We have also upheld a 25-year sentence as substantively

reasonable when the defendant photographed two young girls’ genitals and

downloaded other images of child pornography from the internet, but did not

forcibly sexually assault his victims. See United States v. Sawyer,

, 124–

25 (2d Cir. 2018); see also United States v. Brown,

(2d Cir. 2016)

(Pooler, J., dissenting) (noting that “[i]n 2010 . . . the average sentence for

production of child pornography was 267.1 months,” without regard for whether

the child pornography depicted the defendant’s own sexual abuse). Obviously,

the sexual abuse perpetrated here puts Moussa in a different, far more serious

category than defendants who did not forcibly sexually assault their victims.

Contrary to Moussa’s arguments on appeal, there is nothing in the record to

suggest that the district court misapprehended “the broad discretion [it]

possess[ed]” under United States v. Dorvee,

(2d Cir. 2010), to

6 fashion a below-Guidelines sentence. 2 Nor can it be argued that the district court

was unaware of the potential for the applicable enhancements under the

Sentencing Guidelines to “result in Guidelines [ranges] near or exceeding the

statutory maximum” that could, in some cases, be considered substantively

unreasonable.

. In fact, the district court expressly considered the

potential “overlap” between the offense-level enhancements it had applied, App’x

at 381, and made clear that the sentence it imposed was not driven by the

Sentencing Guidelines,

at 382–83. Instead, the district court concluded that

“an effective sentence of 25 years” – “minus two years that [Moussa] spent in state

custody and minus two months for immigration custody expected to be served in

the future, with credit for time served” – was sufficient but not greater than

necessary to meet the objectives of sentencing. Id. at 388. Based on the record

before us, we cannot say that this sentence was substantively unreasonable.

* * *

2 Although this argument more closely resembles an assertion of procedural unreasonableness, Moussa expressly disclaims any procedural challenge to the district court’s application of the various enhancements. But whether characterized as a procedural or substantive error, we find the argument to be without merit.

7 We have considered Moussa’s remaining arguments and find them to be

without merit. Accordingly, we AFFIRM the judgment of the district court.

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

8