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July 5, 2005

Rowe affirmed and also vacated!

In light of all the O'Connor buzz (which is already getting tiresome), I could not help going for the sensational headline.  But, of course, because the only discussions of viability on this blog concerns shaky sentencing precedents like Almendarez-Torres and Harris, the title of this post refers to today's intriguing criminal decision by the Second Circuit in US v. Rowe, No. 04-1142 (2d Cir. July 5, 2005) (available here).

The main issues in Rowe, which concerns a defendant convicted of advertising to receive, exchange or distribute child pornography in violation of 18 U.S.C. § 2251(c)(1)(A), centers around the defendant's arguments "that his posting was not a 'notice or advertisement' within the meaning of § 2251(c) [and] that venue was improper" in the Southern District of New York.  I will leave it to cyberlaw gurus (like Orin Kerr at The Volokh Conspiracy) to figure out if Rowe is big news on those fronts.   

On the sentencing front, Rowe caught my eye because the defendant argues that his sentence of 10 years in prison, imposed pursuant to a seemingly applicable mandatory minimum sentencing statute, violates the Eighth Amendment.  The Second Circuit is able to duck that issue and ultimately remands for resentencing in Rowe because last year it held in United States v. Pabon-Cruz, 391 F.3d 86 (2d Cir. 2004), "that a violation of § 2251(c) did not require imposition of a 10-year mandatory minimum sentence ... [but rather provides] the District Court [with] discretion to sentence defendant to either a fine or a term of imprisonment of not less than ten years or both" (emphasis added).  More on the remarkable Pabon-Cruz case and the Second Circuit's intriguing interpretation of § 2251(c) can be found here and here.

Given that the defendant's guideline range in Rowe was 97-121 months, it is interesting to speculate what might happen on remand in this case in light of post-Booker sentencing realities and the fact that the district court can now impose a fine or a prison term of 10 or more years, but nothing in between.  The defendant has already claimed that a 10-year prison term is unconstitutional and will thus surely also assert that such a term would be "unreasonable."  On the other side, I have to think that the government would consider a sentence to only a fine with no prison time to be "unreasonable."  Could this be a case where, because of the Second Circuit's intriguing interpretation of § 2251(c), it is impossible to impose a "reasonable" sentence under Booker?  What then?

July 5, 2005 at 05:36 PM | Permalink


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I would think that the Booker requirement of "reasonable[ness]" must be understood as "reasonable in light of the range of possible penalties that Congress has constitutionally assigned for this crime." Say, for example, a defendant is sentenced pursuant to a statutory mandatory minimum (in a context not involving the Second Circuit's interpretation of section 2251(c)). It would seem that, although the sentence must be "reasonable" under Booker, a reviewing court is not free to decide that the minimum statutory sentence is unreasonable, because that decision has been precluded by Congress's adoption of the minimum. (The reasonability requirement is statutory [by implication], not constitutional, so it should have no special ability to trump a sentencing range assigned by Congress.)

Thus, in reaching its quirky (if literal) interpretation of section 2251(c), the Second Circuit seems to have committed itself to the view that every violation of that section is reasonably punished either by a fine or by a prison term exceeding ten years. Strange, yes, but that's only because Rowe's holding--that Congress chose to assign that choice of penalties--was intuitively strange to begin with, even if it technically accorded with the statute's text.

Posted by: CM | Jul 7, 2005 12:54:32 PM

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