United States v. Daniel Munjak

Filing

OPINION FILED - THE COURT: ROGER L. WOLLMAN, STEVEN M. COLLOTON and DUANE BENTON. Steven M. Colloton, Authoring Judge (PUBLISHED) [3884268] [11-2058]

United States Court of Appeals
FOR THE EIGHTH CIRCUIT

___________
No. 11-2058
___________
United States of America,
Appellee,
v.
Daniel Raymond Munjak,
Appellant.

*
*
*
* Appeal from the United States
* District Court for the
* Eastern District of Missouri.
*
*
*
___________
Submitted: December 16, 2011
Filed: February 28, 2012
___________

Before WOLLMAN, COLLOTON, and BENTON, Circuit Judges.
___________
COLLOTON, Circuit Judge.
Daniel Munjak pleaded guilty to one count of possession of child pornography,
in violation of 18 U.S.C. § 2252A(a)(5)(B). The district court1 sentenced Munjak to
97 months’ imprisonment, to be followed by a lifetime of supervised release with
special conditions. Munjak appeals his sentence, asserting that the court made
procedural errors and that the length of incarceration is substantively unreasonable.

1

The Honorable Stephen N. Limbaugh, Jr., United States District Judge for the
Eastern District of Missouri.

Appellate Case: 11-2058

Page: 1

Date Filed: 02/28/2012 Entry ID: 3884268

He also challenges a special condition of his supervised release that restricts his
access to the Internet. We affirm.
I.
Munjak argues that the district court committed procedural error by failing to
explain adequately the basis for his sentence or to consider fully the sentencing
factors set forth in 18 U.S.C. § 3553(a). See Gall v. United States, 552 U.S. 38, 51
(2007). So long as the record indicates that the sentencing court properly considered
the § 3553(a) factors, however, the court need not mechanically recite them. See
United States v. McKanry, 628 F.3d 1010, 1021 (8th Cir. 2011). The district court
here expressly cited the § 3553(a) factors in support of the chosen sentence, and also
characterized Munjak’s child pornography collection as “the worst I’ve seen” because
of its size, violent imagery, and depictions of prepubescent victims. The court
adequately considered Munjak’s arguments for a variance from the guidelines,
acknowledging Munjak’s contention that, as a matter of policy, the sentencing
guidelines are excessive for child pornography offenses, and then granting him “some
relief” by sentencing at the bottom of the advisory range. Further discussion was not
required. See Rita v. United States, 551 U.S. 338, 356 (2007) (“[W]hen a judge
decides simply to apply the Guidelines to a particular case, doing so will not
necessarily require lengthy explanation.”).
Reviewing under a deferential abuse-of-discretion standard, Gall, 552 U.S. at
41, we also reject Munjak’s challenge to the substantive reasonableness of his
sentence. Munjak complains that the district court characterized the sentencing
guidelines for child pornography offenses as “too high,” but nonetheless sentenced
him within those very guidelines. That a district judge now may be permitted to
deviate from the guidelines based on a policy disagreement with the Sentencing
Commission, however, does not mean that the judge is required to do so. See United
States v. Barron, 557 F.3d 866, 871 (8th Cir. 2009). The sentencing court also must
-2-

Appellate Case: 11-2058

Page: 2

Date Filed: 02/28/2012 Entry ID: 3884268

consider “the need to avoid unwarranted sentence disparities among defendants with
similar records who have been found guilty of similar conduct,” 18 U.S.C.
§ 3553(a)(6), and this factor often favors a sentence within the advisory range. We
reject the suggestion that a district judge who personally disagrees with the child
pornography guidelines must sentence outside the advisory range, while a judge who
agrees with the guidelines may sentence within the range. The sentencing court here
ultimately concluded that a sentence at the bottom of the range was appropriate, and
that was not an abuse of discretion.
II.
Munjak next appeals a special condition of his supervised release that prohibits
him from accessing the Internet without the prior approval of the probation office.
Munjak did not object to this condition at sentencing, and we review the district
court’s decision to impose it for plain error. See United States v. Durham, 618 F.3d
921, 943 (8th Cir. 2010).
Sentencing courts have considerable discretion to impose special conditions
of supervised release, so long as those conditions are reasonably related to the
§ 3553(a) factors and involve “no greater deprivation of liberty than is reasonably
necessary.” 18 U.S.C. § 3583(d). Citing United States v. Bender, 566 F.3d 748 (8th
Cir. 2009), Munjak argues that the district court failed to make sufficient
individualized findings about why this condition was necessary. He also relies on
United States v. Wiedower, 634 F.3d 490 (8th Cir. 2011), and United States v. Crume,
422 F.3d 728 (8th Cir. 2005), decisions in which this court vacated similar special
conditions.
There was no plain error here. The reasons for imposing the Internet condition
are evident from the record, so any error did not affect Munjak’s substantial rights.
See United States v. Thompson, 653 F.3d 688, 694 (8th Cir. 2011). The record
-3-

Appellate Case: 11-2058

Page: 3

Date Filed: 02/28/2012 Entry ID: 3884268

established that Munjak possessed 600 or more images of child pornography,
including material that portrayed sadistic or masochistic conduct or other depictions
of violence. These images were possessed on a computer connected to the Internet,
and Munjak distributed child pornography by using a peer-to-peer file-sharing
program. See PSR ¶¶ 4, 8. We have upheld a similar Internet restriction based on
nearly identical facts, see Durham, 618 F.3d at 944-45, and we likewise conclude that
the condition here was reasonably related to the § 3553(a) factors and reasonably
necessary to further the purposes of sentencing, including adequate deterrence and
protection of the public from future crimes by the defendant.
*

*

*

The judgment of the district court is affirmed.
______________________________

-4-

Appellate Case: 11-2058

Page: 4

Date Filed: 02/28/2012 Entry ID: 3884268