In the
United States Court of Appeals
For the Seventh Circuit
No. 10-2696
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
M ARIO M ESCHINO,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 09 CR 469—Charles P. Kocoras, Judge.
A RGUED F EBRUARY 23, 2011—D ECIDED JULY 12, 2011
Before K ANNE, W OOD , and S YKES, Circuit Judges.
S YKES, Circuit Judge. Mario Meschino pleaded guilty to
distributing and possessing child pornography. He re-
ceived a 360-month sentence, the low end of the sen-
tencing guidelines range but the statutory maximum.
Among many other sentencing enhancements, Meschino
received a five-level enhancement pursuant to U.S.S.G.
§ 2G2.2(b)(5) for engaging in a pattern of sexual abuse
of a minor. This enhancement was based on testimony
2 No. 10-2696
from Meschino’s niece that Meschino had sexually
abused her for approximately ten years beginning when
she was about four years old. Meschino appeals, arguing
that the district court should not have prevented him
from cross-examining his niece about a recent rape al-
legation she made against a different family member.
He also contends that another enhancement he received
under U.S.S.G. § 2G2.2(b)(7) for possessing more than
600 images of child pornography violates separation-of-
powers principles. Finally, he claims his sentence is sub-
stantively unreasonable under 18 U.S.C. § 3553(a).
We affirm. The district court was well within its dis-
cretion in barring Meschino from cross-examining his
niece about an unrelated rape allegation. Our precedent
in United States v. Rodgers, 610 F.3d 975 (7th Cir. 2010),
forecloses Meschino’s challenge to § 2G2.2(b)(7), the
number-of-images enhancement. Finally, Meschino’s
sentence is not unreasonable. The district court imposed
the statutory maximum—but within-guidelines—sentence
after meaningful evaluation of the § 3553(a) factors
and based on the presence of multiple serious aggravating
circumstances.
I. Background
At the time of his arrest for possession of child pornogra-
phy, Mario Meschino was 41 years old and worked as a
school-bus driver for elementary- and middle-school
children in and around Plainfield, Illinois. The FBI
became aware of Meschino through its investigation of
another offender who had exchanged child pornography
No. 10-2696 3
with Meschino online. FBI agents executed a search
warrant at Meschino’s home, where they found over 1,000
images and videos of child pornography on various
hard drives and disks. These included images of young
children, including toddlers, being raped, bound, or
sexually tortured. Meschino’s computer also contained
saved chat-room conversations in which Meschino
talked about having sexually assaulted his niece when
she was a child. Additionally, Meschino possessed hun-
dreds of nonpornographic pictures he had taken of chil-
dren on his school bus and in his neighborhood. After
the FBI arrested him, Meschino permitted the FBI to
search his e-mail accounts. In one of his e-mails, Meschino
had attached an image of a naked prepubescent
female performing oral sex on an adult male. In the text
of that e-mail, Meschino expressed interest in trading
more such images with his e-mail correspondent.
Meschino pleaded guilty to knowingly distributing
child pornography in violation of 18 U.S.C. § 2252A(a)(1)
and knowingly possessing child pornography in viola-
tion of 18 U.S.C. § 2252A(a)(5)(B). The government dis-
missed two other counts (one count of receiving child
pornography in violation of 18 U.S.C. § 2252A(a)(2)(A)
and another count of knowingly possessing child pornog-
raphy).
At sentencing Meschino’s niece, then 21 years old,
testified that Meschino had sexually abused her re-
peatedly over a ten-year period, starting when she was
about 4 years old and continuing until she was about 14.
During this time, the niece, whom we will refer to as
4 No. 10-2696
“Victim A,” lived with her grandparents (Meschino’s
parents) along with Meschino. She testified that Meschino
made her perform oral sex on him hundreds of times,
and a few times he also performed oral sex on her and
vaginally penetrated her. When she was about 10 or 11,
Meschino also took pictures of her naked.
Victim A testified that when she was in high school,
she confided in her stepsister about Meschino’s
repeated sexual abuse. Her stepsister then revealed this
information to Victim A’s family. Victim A had not ex-
pected this, and when her father asked if it was true
that Meschino had sexually abused her, she denied it.
She said she did so because her father had reacted
angrily and because she did not feel comfortable talking
to him about sexual abuse. Only later, after learning of
Meschino’s arrest, did Victim A feel ready to talk to
her family about the abuse and report it to the FBI. She
testified that she did not report the abuse earlier
because she felt afraid and embarrassed.
On cross-examination Meschino sought to elicit testi-
mony about a report Victim A had made a few months
earlier alleging that her stepbrother had raped her.
Meschino claimed that Victim A had later contradicted
herself on the rape allegation, thereby undermining her
overall credibility. The district court was skeptical that
Meschino had a good-faith basis for contending that the
recent allegation was false. The judge also thought the
allegation was too factually and temporally removed
from Victim A’s abuse by Meschino years earlier. For
these reasons the court barred Meschino from cross-
examining Victim A on this subject.
No. 10-2696 5
Meschino was, however, permitted to cross-examine
Victim A on other matters bearing on her credibility.
Defense counsel drew attention to the fact that several
months after reporting Meschino’s abuse to the FBI,
Victim A moved back into her grandparents’ home
even though Meschino was also living there on pretrial
home detention. Victim A explained that she did not
want to live there but she had nowhere else to go.
Meschino also cross-examined Victim A about monetary
assistance she received from the government after she
reported Meschino’s abuse, first to enable her to live
in student housing at a community college and later to
help her relocate to another state. Additionally, Victim A
acknowledged that several other relatives lived at
various times in her grandparents’ house during the
period in which Meschino abused her, yet none of them
seemed to know about the abuse.
Other witnesses submitted victim-impact statements
in writing and also in court at the sentencing hearing.
“Victim B,” a childhood friend of Victim A, testified
that for several years beginning when she was 14 years old,
Meschino showed her pornography on his computer,
groped her, and made sexually suggestive comments to
her. Two of Meschino’s neighbors spoke about the emo-
tional harm they and their children experienced after
learning that Meschino had surreptitiously photo-
graphed their children playing in their yards.
Meschino’s base offense level was 22, and his criminal
history category was I. The court applied six guideline
enhancements: a five-level enhancement for a pattern
6 No. 10-2696
of activity involving sexual abuse of a minor, U.S.S.G.
§ 2G2.2(b)(5); a five-level enhancement for possessing
600 or more images, id. § 2G2.2(b)(7)(D); a four-level
enhancement for material portraying sadistic or masoch-
istic conduct, id. § 2G2.2(b)(4); a two-level enhancement
for conduct involving a prepubescent minor, id.
§ 2G2.2(b)(2); a five-level enhancement for receiving or
expecting to receive a thing of value in return for his
distribution of the pornography, id. § 2G2.2(b)(3)(B); and
a two-level enhancement for using a computer in the
offense, id. § 2G2.2(b)(6). Meschino also received a three-
level reduction for accepting responsibility, id. § 3E1.1(a)
and (b). All in all, his total offense level was 42, corre-
sponding to an advisory guidelines range of 360 months
to life imprisonment. The court sentenced Meschino to
the statutory maximums, 240 months on the distribu-
tion count and 120 months on the possession count, to
be served consecutively. See U.S.S.G. § 5G1.2(d).
II. Discussion
Meschino raises three arguments on appeal. First, he
challenges the district court’s refusal to permit him to
cross-examine Victim A about her recent allegation of
sexual assault against her stepbrother. Second, he con-
tends that Congress violated the separation-of-powers
doctrine by directly promulgating § 2G2.2(b)(7). Third,
he claims that his 120-month sentence on the possession
count is substantively unreasonable. None of these argu-
ments has merit.
No. 10-2696 7
A. Cross-examination of Victim A
Meschino asserts that he should have been permitted
to cross-examine Victim A about her rape allegation
against her stepbrother because she reportedly told
her father the day after the alleged rape that she “wasn’t
sure” or “didn’t know” whether it had occurred. This
equivocation, he contends, would have undermined
her credibility.
We review the district court’s exclusion of evidence
during a sentencing hearing for abuse of discretion. See
United States v. Szakacs, 212 F.3d 344, 347 (7th Cir. 2000).1
Generally, “evidentiary standards are [more] relaxed at
sentencing” than at trial. See United States v. Nunez, 627
F.3d 274, 281 (7th Cir. 2010). And even during a trial,
a district judge has “ ‘wide latitude . . . to impose reason-
able limits on . . . cross-examination based on concerns
about . . . harassment’ ” or if a line of questioning would
be “ ‘only marginally relevant.’ ” United States v. Vasquez,
635 F.3d 889, 894 (7th Cir. 2011) (quoting Delaware v. Van
Arsdall, 475 U.S. 673, 679 (1986)). In sexual-abuse cases,
the district court can prevent a defendant from intro-
ducing evidence that his accuser made a different, alleg-
edly false accusation if “[t]he evidence of falsity is
weak,” “the prior incident is unrelated to the charged
1
Meschino contends that de novo review applies because the
district court’s ruling implicated his Sixth Amendment
confrontation-clause rights; we have held, however, that the
confrontation clause does not apply to sentencing hearings.
See United States v. Roche, 415 F.3d 614, 618 (7th Cir. 2005).
8 No. 10-2696
conduct,” and “the defendant intends to use the evi-
dence as part of an attack on the ‘general credibility’ of the
witness.” See United States v. Tail, 459 F.3d 854, 860-61
(8th Cir. 2006). The district court had ample discretion
to limit Meschino’s cross-examination, and its reasons
for doing so here were entirely valid.
For one thing, the court observed that Meschino had
no “concrete information” to support his contention
that Victim A was lying about her allegation against
her stepbrother; Meschino offered only a negative
inference drawn from an ambiguous statement Victim A
reportedly made to her father that day after the alleged
assault. In these circumstances the judge was properly
concerned that Meschino was trying to “go around
fishing on cross-examination hoping . . . to hit the jackpot”
while harassing Victim A, “dirty[ing] her up as much
as [he] could.” Furthermore, it was reasonable for the
district court to conclude that even if there was some
reason to doubt Victim A’s accusation against her step-
brother, this line of inquiry had little bearing on
her testimony against Meschino because it was so dis-
similar, concerned a different abuser, very different
circumstances, and a singular event that took place six
years after Meschino’s decade-long abuse had stopped.
This was a reasonable exercise of discretion.
Moreover, Meschino’s desired line of cross-examina-
tion would have done little to counter the other evidence
that firmly convinced the district court that Victim A’s
testimony against Meschino was truthful. Most impor-
tantly, her testimony was corroborated by Meschino’s
No. 10-2696 9
own chat-room conversations and was consistent with
Victim B’s testimony about Meschino’s sexual advances
toward her when she was a teenager. The district court
also observed that there was no apparent motive for
Victim A to fabricate her testimony against Meschino.
Meschino vigorously challenged Victim A’s credibility
via several other lines of cross-examination, but the
judge simply didn’t “have any doubt” about her testi-
mony that Meschino had sexually abused her.
In short, the district court properly limited cross-exami-
nation because Meschino had little basis for asserting
that Victim A’s recent allegations were false, this line
of inquiry would have been harassing to Victim A, and
its probative value would have been slight.
B. Sentencing Enhanc em e n t Under U .S .S.G .
§ 2G2.2(b)(7)
Meschino objects to § 2G2.2(b)(7) because Congress
passed it without the input of the Sentencing Commission.
This is an issue of law, so we review it de novo. See
United States v. Nagel, 559 F.3d 756, 759 (7th Cir. 2009).
Meschino contends that in directly promulgating
§ 2G2.2(b)(7), Congress violated the separation-of-powers
limits established in Mistretta v. United States, 488 U.S. 361
(1989). We rejected precisely this argument in United
States v. Rodgers, 610 F.3d at 977-78, explaining that it
“rests on a mischaracterization of Mistretta.” It is well-
established that “Congress, of course, has the power to
fix the sentence for a federal crime, . . . and the scope
of judicial discretion with respect to a sentence is
10 No. 10-2696
subject to congressional control.” Mistretta, 488 U.S. at
364 (internal citation omitted). The issue in Mistretta was
whether Congress, by directing the Sentencing Commis-
sion to promulgate sentencing guidelines, “delegated too
much legislative authority to the Sentencing Commission
and violated the separation of powers by requiring
federal judges to serve on the Commission.” Rodgers,
610 F.3d at 977 (citing Mistretta, 488 U.S. at 412). The
Supreme Court rejected the constitutional challenge to
the guidelines regime because Congress had constrained
the discretion of the Sentencing Commission. Id. As we
explained in Rodgers, Mistretta does not undermine, but
rather proceeds from, the principle that the authority
to set sentencing policy originally rests with Congress,
meaning that Congress is free to “bypass the commis-
sion altogether and legislate directly” if it so chooses.
Id. at 978. We decline to revisit Rodgers.
C. Substantive Reasonableness
A within-guidelines sentence is presumptively reason-
able on appeal. Rita v. United States, 551 U.S. 338, 347
(2007); United States v. Nurek, 578 F.3d 618, 626 (7th Cir.
2009). Meschino contends that his 120-month sentence
on the possession count is substantively unreasonable
for two reasons. First, he claims that the four-level en-
hancement he received under § 2G2.2(b)(4) for
possessing material portraying sadistic or masochistic
conduct produced a guidelines range that was too harsh
under the circumstances because he never specifically
sought images of this nature. He says he “traded with
No. 10-2696 11
unknown persons and had no idea what type of images
he would receive until he opened them.” The Sentencing
Commission deems this irrelevant. See U.S.S.G.
§ 2G2.2(b)(4) cmt. n.2 (The enhancement applies “regard-
less of whether the defendant specifically intended to
possess, access with intent to view, receive, or distribute
such materials.”). Accordingly, the district court quite
properly found that even if Meschino did not actively
seek such material, the enhancement applied because
he “looked at it, possessed it, and stored it, hid it, and
kept it.” It was not unreasonable for the court to agree
that Meschino should be held fully culpable for posses-
sion of this particularly harmful form of child pornogra-
phy.
Second, Meschino argues that the enhancements
under § 2G2.2 lack support in empirical data. We have
recognized that the guidelines for crimes involving sexual
exploitation of a minor have been criticized for being
“crafted without the benefit of the Sentencing Commis-
sion’s usual empirical study” and that this criticism “has
been gaining traction” in some district courts that have
chosen to depart from the guidelines. United States v.
Huffstatler, 571 F.3d 620, 622 (7th Cir. 2009). But § 2G2.2’s
“somewhat unusual provenance” in no way obligates
a judge to depart downward. Rodgers, 610 F.3d at 978;
see also United States v. Maulding, 627 F.3d 285, 287-88
(7th Cir. 2010); Huffstatler, 571 F.3d at 624. “What matters
is whether the sentencing judge correctly calculated the
guidelines range and evaluated the § 3553(a) factors to
arrive at a reasonable sentence.” Maulding, 627 F.3d at 288.
12 No. 10-2696
The district court had no reservations about applying
the guidelines in this case. The judge recognized that
he was free to vary if he “severely disagree[d]” with the
guidelines but found that “in this instance . . . they’re
quite relevant and need to be honored.” The judge con-
sidered Meschino’s abuse of his niece, his extensive
volume of child pornography, the “disturbing” and
“terrifying” nature of some of the images, and his
bragging in chat-room conversations about sexually
abusing his niece and taking pictures of children in
his neighborhood and on the bus. These are serious
aggravating circumstances, and it was hardly unrea-
sonable for the judge to emphasize them in weighing the
§ 3553(a) factors. Meschino has not overcome the pre-
sumption that his within-guidelines sentence is reasonable.
A FFIRMED.
7-12-11