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February 1, 2007

Two notable Fifth Circuit sentencing wins for defendants

Yesterday brought two notable defense wins on sentencing issues in the Fifth Circuit:

  • In US v. Polito, No. 06-30133 (5th Cir. Jan. 31, 2007) (unpublished) (available here), which is an internet child porn case, the district court went from a guideline range of 27-33 months to five years probation with one year house arrest.  In a short "per curium" [sic] opinion, the Fifth Circuit panel holds that "[g]iven the totality of the reasons stated by the district court, we do not find that this sentence is unreasonable."  Perhaps the use of "curium" here reveals that the appellate panel realized that affirming a below-guideline sentence in an internet child porn case could prove to be radioactive.
  • In US v. Davis, No. 05-10754 (5th Cir. Jan. 31, 2007) (available here), the defendant prevails on a complicated claim relating to the calculation of drug quantities under the guidelines.

February 1, 2007 at 12:46 PM | Permalink


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What's notable in Polito is that, objectively speaking, his original sentence was no slap on the rist. Five years had elapsed, during which he led an exemplary life, graduated with honors, married, was gainfully employed, and showed no signs of re-offending. If ever pure probation were appropriate, it would be this case.

On top of five years' supervised release, he was sentenced to one year of house arrest, registration as a sex offender, and various restrictions on his use of computers. There's a reasonable argument that that was a good deal more punishment than this defendant needed.

Yet, for the government, that wasn't enough. Prosecutors wanted him to lose his job and family, and be tossed into prison, thereby interrupting the very obvious progress he had made in the intervening five years.

In the ultra-conservative Fifth Circuit, three judges realized that the government had gone too far, and ruled for the defendant.

Posted by: Marc Shepherd | Feb 1, 2007 1:38:40 PM

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