UNITED STATES of America, Appellee, v. Jason TUITE, AKA Jason Tyson, AKA Bryan Tyson, Defendant-Appellant, 517 F. App'x 46

SUMMARY ORDER Defendant-Appellant Jason Tuite appeals from the district court’s judgment convicting him of three counts of knowingly distributing child pornography and one count of knowingly possessing child pornography, in violation of 18 U.S.C. § 2252(a)(2) and (a)(4)(B), and sentencing him principally to 120 months’ imprisonment. On appeal, Tuite argues that his sentence is substantively unreasonable. We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal. We review the substantive reasonableness of a sentence for abuse of discretion, Gall v.

United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007), “tak[ing] into account the totality of the circumstances, giving due deference to the sentencing judge’s exercise of discretion, and bearing in mind the institutional advantages of district courts,” United States v. Cavera, 550 F.3d 180, 190 (2d Cir.2008) (en banc). “[W]e will not substitute our own judgment for the district court’s on the question of what is sufficient to meet the § 3553(

a) considerations in any particular case.” Id. at 189. Accordingly, we will “set aside a district court’s substantive determination only in exceptional cases where the trial court’s decision ‘cannot be located within the range of permissible decisions.’ ” Id. (emphasis omitted) (quoting United States v. Rigas, 490 F.3d 208, 238 (2d Cir.2007)). Relying on our decision in United States v. Mishoe, 241 F.3d 214 (2d Cir.2001), Tuite contends that his 120-month imprisonment sentence was disproportionately long relative to the only prior imprisonment sentence that he has served.

In Mishoe, we suggested that the length of a defendant’s impending sentence relative to any previous sentences he has served may be relevant to whether the impending sentence has a sufficient deterrent effect. See 241 F.3d at 220. We did not, however, require sentencing courts to consider proportionality between a defendant’s impending and prior sentences, see id., and such proportionality, moreover, must be considered in combination with other factors under the totality of the circumstances, see Cavera, 550 F.3d at 190.

Here, the district court acted within its discretion in determining that a 120-month sentence was necessary in light of all of the circumstances, including the need to protect the public and have a sufficient deterrent effect given Tuite’s criminal history involving sexual contact or attempted sexual contact with minors, notwithstanding that his longest previous imprisonment sentence was 12 months. Finally, contrary to Tuite’s argument, there is no indication that the district court placed undue deference on the child pornography Guidelines in disregard of our decision in United States v.

Dorvee, 616 F.3d 174 (2d Cir.2010). We have considered Tuite’s remaining arguments and find them to be without merit. The judgment of the district court is AFFIRMED.