NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
No. 24-3096
UNITED STATES OF AMERICA
v.
DANIEL MARSICO,
Appellant
Appeal from the United States District Court for the Western District of Pennsylvania (District Court No. 2:24-cr-00012-001) District Judge: Honorable Cathy Bissoon
Submitted under Third Circuit L.A.R. 34.1(a) November 14, 2025
Before: RESTREPO, McKEE, and AMBRO, Circuit Judges
(Opinion filed November 21, 2025) ___________ OPINION* ___________ AMBRO, Circuit Judge
The District Court sentenced Daniel Marsico to five years in prison for a yearslong
campaign of cyberstalking it found “beyond egregious.” App. 244. He appeals, protesting
that his sentence is unreasonable. It is not, so we affirm the sentence.
I.
Around June 2020, the woman Marsico was dating broke up with him. For the next
several years, he stalked and harassed her. He called her incessantly. He sent her—and
later, her mother—thousands of text messages. When the woman blocked Marsico’s phone
number, he used new ones and found other ways to circumvent her blocks. Marsico
surveilled her, and he made sure she knew he was watching. He threatened to publish
explicit photos and videos of her that he had taken without her consent, sabotage her career,
invade her home, and assault her and the men she dated. Marsico fulfilled many of these
threats. To name just two: He impersonated the woman online, posting some of the
nonconsensual photos and giving strangers her phone number and email address so they
could harass her. And he broke through her door and attacked a former boyfriend of hers
who was visiting. No summary can do justice to the suffocating scope of Marsico’s
campaign.
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent.
2 Eventually, the former date alerted the police and obtained Protection from Abuse
Orders (“PFAs”) against Marsico. The PFAs did not deter him. After each encounter with
the police, he immediately violated the orders by texting her unsettling messages: “The cop
on the phone was actually really nice and appreciated that I just straight up admitted to
everything I did.” “Just got delivered a pfa and the cops were REALLY nice!” “I beat up
my neighbor and charmed my way out of it with the cops. You think being delivered a pfa
phases me in the slightest?” He violated a single PFA roughly 1,300 times. Living each
day under a shadow of fear he would murder her, the woman developed post-traumatic
stress disorder.
At last, in January 2024 a grand jury indicted Marsico for cyberstalking in violation
of 18 U.S.C. § 2261A(2)(A) and (B). In June 2024, he pled guilty.
Cyberstalking carries a statutory sentencing range of 1 to 5 years in prison. 18
U.S.C. § 2261(b)(5)-(6). The Sentencing Guidelines provided for a range of 30 to 37
months for Marsico. He entered a plea agreement under Federal Rule of Criminal
Procedure 11(c)(1)(C) with a range of 20 to 30 months. The District Court received victim
impact statements as well as letters of support for Marsico. At sentencing, it heard from
Marsico’s mother, his aunt, and Marsico himself. The presentence report indicated
Marsico had been diagnosed with depression, anxiety, and bipolar disorder when he was
younger and had been receiving treatment from a psychiatrist at the time of his arrest.
The District Court rejected the plea agreement in light of “the severity of the
conduct,” the victim impact statements and the rest of the record. App. 234. It gave Marsico
an opportunity to withdraw his guilty plea and a break to discuss his options with his
3 attorney. He maintained his plea. The Court then sentenced him to 60 months in prison
and 3 years of supervised release.
The District Court explained that it took a “holistic view” of “all the facts and
circumstances of this particular case,” and that the sentence “represent[ed] one of the rare
occasions on which [it] upwardly varied.” The Court reasoned that the Guidelines did not
adequately account for “the frequency, duration, and sophistication of the harassment, the
power dynamics between the defendant and his victim, [and] the special role of the internet
and social media.” App. 244. As noted, it described Marsico’s behavior as “beyond
egregious.” App. 244. And it emphasized that Marsico had not been deterred—whether by
the victim’s documentation of his abuse, by the police action, by the PFAs, or even by the
threat of criminal liability and “seem[ed] to be unconcerned with the judicial ramifications
of his actions.” App. 244. On these facts, the Court concluded “[t]here simply [wa]s no
scenario under which a lesser sentence would be sufficient in this case.” App. 244.
Now, Marsico appeals his sentence.
II.
The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction
under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). We review for plain error whether the
sentence is procedurally unreasonable because Marsico failed to object at the appropriate
time. See United States v. Flores-Mejia, 759 F.3d 253, 256 (3d Cir. 2014) (en banc); We
review for abuse of discretion whether a sentence is substantively reasonable. United States
v. Tomko, 562 F.3d 558, 567–68 (3d Cir. 2009) (en banc). We affirm “unless no reasonable
4 sentencing court would have imposed the same sentence on that particular defendant for
the reasons the district court provided.” Id. at 568.
III.
Marsico argues his sentence was unreasonable: procedurally, because the District
Court failed to consider his mental health history, and substantively, because the sentence
was too long in view of that history (among other reasons). He is wrong on both counts.
“The touchstone of ‘reasonableness’ is whether the record as a whole reflects
rational and meaningful consideration of the factors enumerated in 18 U.S.C. § 3553(a).”
United States v. Grier, 475 F.3d 556, 571 (3d Cir. 2007) (en banc). The failure to consider
a § 3553(a) factor is a procedural error. Tomko, 562 F.3d at 568. If the sentence was
procedurally reasonable, then “[a]s long as [it] falls within the broad range of possible
sentences that can be considered [substantively] reasonable in light of the § 3553(a) factors,
[this Court] must affirm.” United States v. Wise, 515 F.3d 207, 218 (3d Cir. 2008). As “the
party challenging the sentence,” Marsico “has the burden of demonstrating
unreasonableness.” Tomko, 562 F.3d at 567.
He appears to argue his sentence was procedurally unreasonable because the District
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
No. 24-3096
UNITED STATES OF AMERICA
v.
DANIEL MARSICO,
Appellant
Appeal from the United States District Court for the Western District of Pennsylvania (District Court No. 2:24-cr-00012-001) District Judge: Honorable Cathy Bissoon
Submitted under Third Circuit L.A.R. 34.1(a) November 14, 2025
Before: RESTREPO, McKEE, and AMBRO, Circuit Judges
(Opinion filed November 21, 2025) ___________ OPINION* ___________ AMBRO, Circuit Judge
The District Court sentenced Daniel Marsico to five years in prison for a yearslong
campaign of cyberstalking it found “beyond egregious.” App. 244. He appeals, protesting
that his sentence is unreasonable. It is not, so we affirm the sentence.
I.
Around June 2020, the woman Marsico was dating broke up with him. For the next
several years, he stalked and harassed her. He called her incessantly. He sent her—and
later, her mother—thousands of text messages. When the woman blocked Marsico’s phone
number, he used new ones and found other ways to circumvent her blocks. Marsico
surveilled her, and he made sure she knew he was watching. He threatened to publish
explicit photos and videos of her that he had taken without her consent, sabotage her career,
invade her home, and assault her and the men she dated. Marsico fulfilled many of these
threats. To name just two: He impersonated the woman online, posting some of the
nonconsensual photos and giving strangers her phone number and email address so they
could harass her. And he broke through her door and attacked a former boyfriend of hers
who was visiting. No summary can do justice to the suffocating scope of Marsico’s
campaign.
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent.
2 Eventually, the former date alerted the police and obtained Protection from Abuse
Orders (“PFAs”) against Marsico. The PFAs did not deter him. After each encounter with
the police, he immediately violated the orders by texting her unsettling messages: “The cop
on the phone was actually really nice and appreciated that I just straight up admitted to
everything I did.” “Just got delivered a pfa and the cops were REALLY nice!” “I beat up
my neighbor and charmed my way out of it with the cops. You think being delivered a pfa
phases me in the slightest?” He violated a single PFA roughly 1,300 times. Living each
day under a shadow of fear he would murder her, the woman developed post-traumatic
stress disorder.
At last, in January 2024 a grand jury indicted Marsico for cyberstalking in violation
of 18 U.S.C. § 2261A(2)(A) and (B). In June 2024, he pled guilty.
Cyberstalking carries a statutory sentencing range of 1 to 5 years in prison. 18
U.S.C. § 2261(b)(5)-(6). The Sentencing Guidelines provided for a range of 30 to 37
months for Marsico. He entered a plea agreement under Federal Rule of Criminal
Procedure 11(c)(1)(C) with a range of 20 to 30 months. The District Court received victim
impact statements as well as letters of support for Marsico. At sentencing, it heard from
Marsico’s mother, his aunt, and Marsico himself. The presentence report indicated
Marsico had been diagnosed with depression, anxiety, and bipolar disorder when he was
younger and had been receiving treatment from a psychiatrist at the time of his arrest.
The District Court rejected the plea agreement in light of “the severity of the
conduct,” the victim impact statements and the rest of the record. App. 234. It gave Marsico
an opportunity to withdraw his guilty plea and a break to discuss his options with his
3 attorney. He maintained his plea. The Court then sentenced him to 60 months in prison
and 3 years of supervised release.
The District Court explained that it took a “holistic view” of “all the facts and
circumstances of this particular case,” and that the sentence “represent[ed] one of the rare
occasions on which [it] upwardly varied.” The Court reasoned that the Guidelines did not
adequately account for “the frequency, duration, and sophistication of the harassment, the
power dynamics between the defendant and his victim, [and] the special role of the internet
and social media.” App. 244. As noted, it described Marsico’s behavior as “beyond
egregious.” App. 244. And it emphasized that Marsico had not been deterred—whether by
the victim’s documentation of his abuse, by the police action, by the PFAs, or even by the
threat of criminal liability and “seem[ed] to be unconcerned with the judicial ramifications
of his actions.” App. 244. On these facts, the Court concluded “[t]here simply [wa]s no
scenario under which a lesser sentence would be sufficient in this case.” App. 244.
Now, Marsico appeals his sentence.
II.
The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction
under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). We review for plain error whether the
sentence is procedurally unreasonable because Marsico failed to object at the appropriate
time. See United States v. Flores-Mejia, 759 F.3d 253, 256 (3d Cir. 2014) (en banc); We
review for abuse of discretion whether a sentence is substantively reasonable. United States
v. Tomko, 562 F.3d 558, 567–68 (3d Cir. 2009) (en banc). We affirm “unless no reasonable
4 sentencing court would have imposed the same sentence on that particular defendant for
the reasons the district court provided.” Id. at 568.
III.
Marsico argues his sentence was unreasonable: procedurally, because the District
Court failed to consider his mental health history, and substantively, because the sentence
was too long in view of that history (among other reasons). He is wrong on both counts.
“The touchstone of ‘reasonableness’ is whether the record as a whole reflects
rational and meaningful consideration of the factors enumerated in 18 U.S.C. § 3553(a).”
United States v. Grier, 475 F.3d 556, 571 (3d Cir. 2007) (en banc). The failure to consider
a § 3553(a) factor is a procedural error. Tomko, 562 F.3d at 568. If the sentence was
procedurally reasonable, then “[a]s long as [it] falls within the broad range of possible
sentences that can be considered [substantively] reasonable in light of the § 3553(a) factors,
[this Court] must affirm.” United States v. Wise, 515 F.3d 207, 218 (3d Cir. 2008). As “the
party challenging the sentence,” Marsico “has the burden of demonstrating
unreasonableness.” Tomko, 562 F.3d at 567.
He appears to argue his sentence was procedurally unreasonable because the District
Court failed to consider one § 3553(a) factor, his history and characteristics (particularly
his mental health). But the Court considered it. At sentencing, it actively questioned
defense counsel and Marsico’s mother about on those topics. And the Court expressly
noted it had considered the materials that addressed his mental health, from the presentence
report to the testimony of one of his mental healthcare providers. In fact, Marsico
acknowledges that “all parties, including the Court[,] were aware of [his] mental health
5 issues.” Opening Br. 20. And he describes how the Court learned about his mental health
through the plea agreement, sentencing memos, letters of support, live testimony, and the
presentence report. In this context, there is no reason to doubt the sentence was
procedurally reasonable.
The sentence here was substantively reasonable as well. Marsico first suggests that
is not so because the sentence exceeded his Guidelines range. But “we cannot presume
that a sentence is unreasonable simply because it falls outside the advisory Guidelines
range.” Id. at 567. And the District Court detailed the conduct that justified the upward
variance. Marsico also suggests the sentence was unreasonable because his plea agreement
provided for a range of 20 to 30 months. But “[a] sentencing court can, of course, reject
the results of a plea negotiation if it concludes that the resulting agreement is not in the best
interest of justice.” Gov’t of the Virgin Islands v. Walker, 261 F.3d 370, 375 (3d Cir. 2001).
Marsico’s only developed argument is that his mental health mitigates his culpability. But
“a district court’s failure to give mitigating factors the weight a defendant contends they
deserve does not make a sentence substantively unreasonable.” United States v. Seibert,
971 F.3d 396, 402 (3d Cir. 2020) (citation modified).
* * * *
The District Court “considered the parties’ arguments and ha[d] a reasoned basis for
exercising [its] own legal decision-making authority.” Rita v. United States, 551 U.S. 338,
356 (2007). We therefore affirm Marsico’s sentence.