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August 14, 2007

Presto, never chango ... lifetime supervision approved by Sixth Circuit

The Sixth Circuit covers a lot of post-Booker sentencing ground today in US v. Presto, No. 05-6888 (6th Cir. Aug. 14, 2007) (available here), in the course of affirming a district court's imposition of lifetime supervised release for receipt and possession of child pornography.  Here is one of many interesting aspects of a seemingly simple case:

Defendant also argues that his sentence is unreasonable because it would result in significant financial cost to the government, and because “the limitless period of mandatory participat[ion] in a sex offender treatment [program] with polygraph and plethysmograph testing will result in substantial costs to [defendant] for the remainder of his life.”  Appellant’s Brief at 23. He provides no legal support for the idea that a sentence is unreasonable if it would result in significant cost to a defendant or the government, and the cost of supervision and testing is not a factor the district court is required to consider under § 3553(a).  Thus, the cost of compliance does not render defendant’s sentence unreasonable.

August 14, 2007 at 10:10 AM | Permalink


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When Is Child Porn A Crime?

If Mark's son Joshua were convicted in California rather than Ohio, he would be required to register for life, would have to wear a GPS device for life, and would be banished from a good part of the state, thanks for California's Jessica's Law that Mark helped pass.

Wasn't mandatory sentencing supposed to eliminate disparity? Instead, it is far more extreme.

Posted by: George | Aug 14, 2007 2:00:30 PM

George, California and Ohio are different states.

Posted by: | Aug 14, 2007 2:24:39 PM

federalist, Mark Lunsford goes from state to state.

Posted by: George | Aug 14, 2007 4:02:42 PM

(I'm not federalist) No kidding, but saying that "mandatory sentencing [was] supposed to eliminate disparity" sounds a little ridiculous when you're talking about state law.

Posted by: | Aug 14, 2007 4:14:41 PM

First, to the two previous posts, this case comes from Tennessee, not Ohio.

Regarding the merits of the opinion, I think the Court got the notice issue wrong. The Court found that notice was provided because the plea and the PSR said the court could impose up to lifetime supervision. From my experience, every plea and PSR includes a statement on what the statutory range is and informs the defendant that the judge could sentence anywhere within that range. Does that mean that there will never be a Rule 32 violation?

Rule 32 violations occur when a defendant is not given notice that a departure/variance is being contemplated and the reason for any potential departure/variance. In my opinion, the Court confused "notice" that the judge COULD vary with notice that the judge IS CONSIDERING the variance and the ground she is considering it on.

True, the PSR also detailed the facts that the judge used to impose the lifetime term. However, those facts were "not identified for departure" in either the PSR or the plea agreement. Rule 32 requires notice that those facts are being contemplated by the Court as grounds for a variance.

Finally, counsel's statement at the sentencing hearing do not show that Rule 32's Notice was satisfied. Counsel's statements, again, merely show that the defendant had notice that the judge had DISCRETION to vary. The statements did not show that the defendant had notice that the court was actually "contemplating" using that discretion and the grounds for doing so.

In essence, the Sixth Circuit appears to have held here that mere notice that the court has discretion to depart/vary is sufficient Rule 32 notice. In my opinion, that is a mistake.

Posted by: DEJ | Aug 14, 2007 4:32:55 PM

That was the soundbite that justified mandatory minimums, disparity. Your implication is that there is no national media and no one is fighting for what amounts to national laws though enacted state by state. Federalism in this context is a ruse that conceals the real intention.

See, once again, Corporate -Sponsored Crime Laws.

It would be interesting to know what they are doing now, so meet ALEC.

ALEC, this is not federalist.

Posted by: George | Aug 14, 2007 4:43:27 PM

George, you're still not making any sense, and your whining is off-topic.

Posted by: | Aug 14, 2007 5:21:04 PM

Your whining about my whining is off topic.

It makes sense to those who can read.

Speaking of off topic, I'm done with you.

Posted by: George | Aug 14, 2007 10:47:55 PM

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