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January 31, 2008

A loooong Eleventh Circuit opinion reversing below-guideline sentence

Though I doubt it will be quite as exciting as either the Lost season premire or the Democrats playing one-on-one, part of my evening plans now include readind the Eleventh Circuit's new 50-page(!) opinion addressing reasonableness review in US v. Pugh, No. No. 07-10183 (11th Cir. Jan 31, 2008) (available here). Here is how the long opinion starts:

This appeal tests the nature and extent of appellate review over sentencing under the new regime of advisory Sentencing Guidelines.  After thorough review, we are constrained to conclude that even under the most recent Supreme Court precedent, affording substantial deference to the district court’s sentencing determinations, the district court abused its discretion by imposing a probationary sentence on the defendant in this case.

Here, the government appealed from the non-custodial sentence of defendant Bruce Clayton Pugh (“Pugh”), who downloaded on his computer over a period of several years at least 68 images of child pornography, as well as videos of an adult male raping an infant girl and of a young girl performing oral sex on an adult male.  The advisory Sentencing Guidelines range recommended for the offense to which Pugh pled guilty -- knowing possession of images of child pornography that were mailed, shipped or transported by computer in violation of 18 U.S.C. §§ 2252A(a)(5)(B) and 2256(8)(A) -- was 97 to 120 months’ imprisonment.  The district court nevertheless sentenced Pugh to a five-year probationary term. In so doing, the district court relied heavily on Pugh’s history, characteristics and motive in imposing a non-custodial sentence for a crime that fell on the high end of the Guidelines sentencing table. But in our view, the district court did not provide a sufficiently compelling justification to support the degree of its variance, nor did it give any apparent weight to many other important statutory factors embodied by Congress in 18 U.S.C. § 3553(a) that must be considered at sentencing.  As we see it, this probationary sentence utterly failed to adequately promote general deterrence, reflect the seriousness of Pugh’s offense, show respect for the law, or address in any way the relevant Guidelines policy statements and directives.  Accordingly, we hold that this sentence is unreasonable, and therefore vacate and remand so that the district court can re-calculate the defendant’s sentence.

January 31, 2008 at 05:42 PM | Permalink

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Comments

This decision, involving the appellate court's substitution of its judgment for that of the district court in reversing a 97-month downward variance, essentially labels child pornography offenses as outside the normal scope of discretionary sentencing, but fails to make any effort to deal with the constitutional implications of treating some offenses as more bound by guidelines than others.

Posted by: crim lawyer | Jan 31, 2008 5:48:02 PM

I have not yet read the opinion (for lack of time, but also b/c the link was not there), but my quick reaction is that the 11th Cir. needs to re-read Gall. Use of the phrases "in our view" and "as we see it" seem to to directly contradict Gall's explaination that the CoA inappropriatly "engaged in an analysis that more closely resembles de novo review of the facts presented and determined that, in its view, the degree of variance was not warranted."

In fact, given the 11th's rationale that "sufficiently compelling justification" was not present, this quote from Gall could easily be cut an pasted into an opinion reviewing this case: "The Court of Appeals clearly disagreed with the District Judge's conclusion that consideration of the § 3553(a) factors justified a sentence of probation; it believed that the circumstances presented here were insufficient to sustain such a marked deviation from the Guidelines range. But it is not for the Court of Appeals to decide de novo whether the justification for a variance is sufficient or the sentence reasonable."

Posted by: DEJ | Jan 31, 2008 8:00:04 PM

Use of the phrases "in our view" and "as we see it" seem to to directly contradict Gall's explaination that the CoA nappropriatly "engaged in an analysis that more closely resembles de novo review of the facts presented and determined that, in its view, the degree of variance was not warranted."

I think those phrases just reflect a writing style that attempts to show some humility rather than a mistake about the standard of review.

There's a difference between saying "in our view, the sentence was too short," and "in our view, no reasonable judge applying the proper law could have imposed that sentence." Remove the "in our view" from either of the above phrases, and it's saying the same thing.

You may well be right about the larger point re: whether the court properly applied Gall. I, too, will have to read the opinion.

Posted by: | Jan 31, 2008 9:03:08 PM

DEJ, the salient words from the Gall quote you excerpted are, "de novo." The only point of that passage is that COAs must give substantial deference to the district court's weighing of the 3553(a) factors; it does not somehow forbid COAs from ever reversing the district court's weighing of the 3553(a) factors.

Posted by: Chris | Jan 31, 2008 10:58:08 PM

While this is way too long to read the entire opinion for someone who is no longer directly involved in practicing criminal law, I do wonder - in cases like this, whether it is appropriate for courts to take into account the sheer fact that these losers' lives are put on display for all the world (at least the few of us who read the Federal Reporters) to see. It sounds like the trial court decided that the guy was such a loser that exposing it was punishment enough.

Posted by: Zack | Feb 1, 2008 10:29:48 AM

The trial court relied most heavily on a crucial fact that the Court of Appeals did not see fit to include in its tome of an opinion. Bruce Pugh sent an email to one man who sent child pornography to him and that email said: "That was a little girl. I don't like child porn." What the Court of Appeals has done in this case is send a message to district courts that probationary sentences will never be affirmed in child pornography cases - period - in direct contravention of the Supreme Court's decision in Gall. While the Court of Appeals denied (in the last sentence of a footnote) that it intended to send that message, the message was heard loud and clear.

Posted by: Fedef | Feb 1, 2008 11:55:04 AM

Chris, "it does not somehow forbid COAs from ever reversing the district court's weighing of the 3553(a) factors."

I agree that Gall continues to allow for substintive reasonableness review. But such review is limited, IMO, to irrational sentence lenghts, not to re-visiting the 3553(a) factors. The 11th's rationale for reversing (i.e. "sufficiently compelling justification" and "utterly failed...") is more akin to de novo review than abuse of discretion.

Fedef: I complete agree with you that the 11th is, in effect, saying that a probation sentence will virtually always be an abuse of discretion for this type of cases. In fact, all of the factors the Appeals court found significant (i.e. "general deterrence" "offense seriousness" "respect for the law" and "Gidelines") are going to be constant for all such cases.

Posted by: DEJ | Feb 1, 2008 2:52:40 PM

Once again, the circuit court used the guidelines as a reference to determine the reasonableness.

Posted by: EJ | Feb 2, 2008 1:11:08 PM

Anazing the debates that take place with no real world context. Ask any person in the street whether a no-prison sentence for a guy who downloaded kiddie porn with an adult male having intercourse with a baby is "reasonable" and you will get a resounding no.

Posted by: federalist | Feb 4, 2008 12:28:05 PM

Well, federalist, it sounds like your analysis is what is lacking in "real world context." I thought you knew this, but let me just clarify:

In the federal system, when sentencing a defendant, we don't just pull people off the "street" and give them a one sentence blurb about a case and ask them what is reasonable. Instead, we have an Art. III federal judge look at inter alia: all the facts about the case, facts about the offender, all the info. in the PSR, defense argument, govt. argument, allocation, and all the 3553(a) factors.

Also, in reviewing sentences, again, we don't just give a one sentence blurb and take a poll of people on the street about their opinion of the sentence.

I don't believe that "real world" analysis means a public opinion poll based on no information. But if it does, then I make no apologies for not advocating for this "real world" perspective.

Posted by: DEJ | Feb 5, 2008 12:43:06 PM

Gee, I feel so enlightened now--NOT. The bottom line, when all is said and done, is that this turkey knowingly possessed a picture with an adult having sex with a baby. It is simply unreasonable, almost per se, that he would do no jail time. (Maybe, if before sentencing, the guy risked his neck to save someone's life . . . .) My point is that these arguments get divorced from any real-world tests. We are talking about what is "reasonable" for a malum in se crime, not the interpretation of some arcane provision of ERISA.

Posted by: federalist | Feb 5, 2008 2:33:14 PM

dear sir;

IN A CASE WHICH THE US SUPREME COURT MEMBERS WERE HANDED A SET OF PICUTRES OF THE ABUSE OF A VTERAN AT A VA HOSPITAL, THE MEMBER WERE HEARD TO MAKE A COMMENT IF THEIS MAD WAS ALIVE IN THESE
PICTURES. THIS WAS DOCUMENTED EVIDENCE OF CRIMINAL NEGLECT AT THREE VA HOSPITALS IN MISSOURI IN WHICH THIS VETERAN A PARAPLEGIC DID DIE LATER ON FROM THIS ABUSE.
THE COURT SHOULD VIEW THIS AS A SICK PERSON IN NEED OF LONG, LONG MENTAL INPATIENT TREATMENT FOR 30 YEARS OR MORE.


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