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April 10, 2006

Fifth Circuit affirms life-time supervised release for downloading child porn

To wrap up some of last week's circuit sentencing action — which brought important rulings from the First Circuit, the Second Circuit, the Fourth Circuit, the Seventh Circuit, the Tenth Circuit and others — the Fifth Circuit issued an interesting opinion in US vs. Gonzalez, No. 05-40950 (5th Cir. Apr. 7, 2006) (available here).  The Fifth Circuit in Gonzalez reached a mixed result in reviewing a defendant's objections to a sentence in a case involving the downloading of child porn.

First, the defendant in Gonzalez prevails on his claim that his guideline offense level was improperly "increased twice on the basis of the number of child pornography images he possessed." In finding for the defendant on his double-counting claim, the Fifth Circuit in Gonzalez appears to create a circuit split due to a contrary ruling last year by the Eleventh Circuit.  (So much for national sentencing uniformity.)

Second, the defendant in Gonzalez fails in his objection to the judge's upward departure in "Gonzalez's term of supervised release — from the Guidelines term of three years to the statutory maximum term of life."  The Fifth Circuit declares this upward departure reasonable after concluding that downloading of child porn qualifies as a "sex offense."

April 10, 2006 at 01:33 PM | Permalink

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