12‐4281‐cr
United States v. Zhen Guan
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 11th day of October, two thousand
thirteen.
PRESENT: RALPH K. WINTER,
JOHN M. WALKER, JR.,
RICHARD C. WESLEY,
Circuit Judges.
UNITED STATES OF AMERICA,
Appellee,
‐v.‐ No. 12‐4281‐cr
ZHEN GUAN,
Defendant‐Appellant.
FOR APPELLANT: Stacey Van Malden, Goldberger & Dubin, P.C., New
York, NY.
FOR APPELLEE: Nathan Reilly, Jo Ann M. Navickas, Assistant United
States Attorneys, for Loretta E. Lynch, United States
Attorney for the Eastern District of New York, Brooklyn,
NY.
Appeal from the United States District Court for the Eastern District of
New York (John Gleeson, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED AND DECREED that the judgment is AFFIRMED.
Zhen Guan appeals from a judgment of conviction and a sentence entered
on October 10, 2012, in the United States District Court for the Eastern District of
New York. We assume the parties’ familiarity with the facts and the issues raised
on appeal.
Guan’s contention that 18 U.S.C. § 2251 is an unconstitutional
manifestation of Congress’s power under the Commerce Clause is foreclosed by
earlier decisions of this Court. See, e.g., United States v. Holston, 343 F.3d 83, 88‐90
(2d Cir. 2003). “Because much of the child pornography that concerned Congress
is homegrown, untraceable, and enters the national market surreptitiously, we
conclude that Congress, in an attempt to halt interstate trafficking, can prohibit
local production that feeds the national market and stimulates demand, as this
product substantially affects interstate commerce.” Id. at 90. “As we are satisfied
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that § 2251(a) lies within Congress’s powers under the Commerce Clause, the fact
that [Guan] neither shipped the materials interstate nor intended to benefit
commercially from his conduct is of no moment.” Id. at 91.
Guan’s due process argument, relying on his assertion that his production
of child pornography did not result in the “distribution” that Congress ostensibly
intended to combat through 18 U.S.C. § 2251, is also foreclosed by this Court’s
precedents. See, e.g., id. at 90; see also Proyect v. United States, 101 F.3d 11, 14 (2d
Cir. 1996) (per curiam). Even if Guan was prosecuted because of the details of how
he committed the crimes that he concedes committing, “a prosecutor’s pretrial
charging decision is presumed legitimate” and Guan has not supported “‘a
finding of ‘actual’ vindictiveness, or . . . [created] a presumption of vindictiveness
that has not been rebutted.’” United States v. Sanders, 211 F.3d 711, 716 (2d Cir.
2000) (quoting United States v. Johnson, 171 F.3d 139, 140 (2d Cir. 1999) (per
curiam)).
Guan’s mandatory minimum sentence of fifteen years’ imprisonment does
not constitute cruel and unusual punishment in violation of the Eighth
Amendment. “The Eighth Amendment forbids only extreme sentences that are
grossly disproportionate to the crime.” United States v. Rivera, 546 F.3d 245, 254‐55
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(2d Cir. 2008) (internal quotation marks omitted). Guan has not demonstrated
that his sentence is grossly disproportionate to the crime that he committed; his
sentence was constitutionally permissible.
We have considered all of Guan’s arguments and find them to be without
merit. For the reasons stated above, the judgment of the district court is
AFFIRMED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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