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January 17, 2008

Fourth Circuit vacates above-guideline sentence because of notice problems

Though the Supreme Court now has a post-Booker notice issue on its docket with Irizarry (basics here), the Fourth Circuit apparently could not wait before vacating an above-guideline sentence today in US v. Fancher, No. 06-4913 (4th Cir. Jan. 17, 2008) (available here).  Here is how the opinion starts:

Johnny Ray Fancher appeals the 480-month sentence imposed after he pleaded guilty to one count of receiving child pornography. We conclude that the district court did not provide sufficient notice that it was considering an above-Guidelines sentence, and we therefore vacate Fancher’s sentence and remand for re-sentencing.

January 17, 2008 at 04:47 PM | Permalink

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Comments

Is my math right. This guy received a 40 year sentence for 1 COUNT of child porn? I'm a law and order guy, but how can it be that if you actually rape a child, you'll get maybe 5-8 years, but watching child porn gets you 40 years?

Posted by: | Jan 17, 2008 11:31:49 PM

I am with you on that. The system is so mixed up. Their priorities are so off base. I am yet to understand our laws and punishments for the American people. Law and order yeah, but that's just absurd!

Posted by: jubria | Jan 18, 2008 12:43:36 AM

The statutory minimum here was 15 years because of his prior conviction for sexually abusing a minor. And it probably didn't help that he was sending love letters to a 16 year old from jail.

I'm also guessing it was partially based on uncharged conduct... "Examination of Fancher’s computer and the CDs revealed more than 600,000 images of naked girls between the ages of four and fourteen. Of those images, however, only twenty-five to thirty were explicit enough to qualify as child pornography."

40 years here was the maximum and based on the above facts, I won't lose too much sleep if it's reimposed on remand with the proper notice being given.

Posted by: JustClerk | Jan 18, 2008 8:13:35 AM

See I'm not so sure JustClerk. I've know of lots of homicide cases where the defendant didn't get 20 years; so how can 40 years for this conduct be right? Obviously, this guy is a loser, but it's not against the law to have non porn images of minors, now is it?

Posted by: | Jan 18, 2008 9:19:34 AM

The more years this guy gets in jail the safer we are.

In fact, the very fact of the remand makes me feel less safe.

Posted by: S.cotus | Jan 18, 2008 10:58:24 AM

9:19 is right. Child porn is very bad. Murder is worse. 40 years for possessing child porn is substantively unreasonable. Even the 15 year minimum seems crazy given that murderers and rapists don't always do that much time. But 40 years is absolutely bonkers, even if he was writing "love letters" to a 16 year old. If anyone can convince me that looking at child porn is worse than stabbing another human being to death, then I'd reconsider my views.

Posted by: | Jan 18, 2008 11:03:15 AM

S.cotus you surprise me since you seen so anti-prosecutor (and I often wonder how serious your posts are since it seems you just like pissing people off).

Let pretend for a moment that you're sincere. So, you're against the death penalty (or at the least, just want is mandatory for 8 years to watch), but think that looking at porn -- even disgusting porn -- merits a 40 year sentence that is substantially longer than most people receive for homicide. And... that makes sense, how?

Posted by: | Jan 18, 2008 12:18:45 PM

“S.cotus you surprise me since you seen so anti-prosecutor (and I often wonder how serious your posts are since it seems you just like pissing people off).”

Okay, let me see if I understand your logic here. First you say I am “anti-prosecutor.” This simply is not true. Prosecutors are lawyers and therefore I have more in common with a given prosecutor then I will with a non-lawyer. Likewise, “prosecutors” covers a very wide area: from political appointees, to people looking to get their tickets punched with trial experience, to political hacks. I can’t say that I dislike any of them. Of the above categories of prosecutors, there are ideological differences, I would divide them into the following: 1) those that see the prosecutor as a “policy-maker” who does justice by an evenhanded exercise of prosecutorial discretion (generally they dislike actual trials; 2) those who are attention whores (that love trials); 3) those that believe that the more people that go to jail the better (and they think that trials are a nuisance because it makes it difficult to load up the jails); and 4) those that really don’t care, but see it as a job. I get like prosecutors that have the correct combination of the above-mentioned attributes.


“So, you're against the death penalty (or at the least, just want is mandatory for 8 years to watch),”
Again, this is not true. As it is applied now, I don’t think it is a good idea for two reasons: 1) we are not truly honest about the error rate; and 2) decisions about the death penalty are not really undertaken in a democratic manner. Americans simply do not watch enough people die based in the custody of the state to make an informed decision. This is why I am a steadfast advocate for public executions that are available on TV and the internet, and show in all schools. Every voter should see at least half a dozen people executed a year.

“but think that looking at porn -- even disgusting porn -- merits a 40 year sentence that is substantially longer than most people receive for homicide.”

I just feel safe with more people in jail. Once someone is executed, he isn’t in jail, and I feel less safe. Call it irrational, but so is the system. Also, he wasn't convicted for looking at pr0n. He was convicted for possessing it.

Posted by: S.cotus | Jan 18, 2008 1:15:43 PM

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