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April 16, 2009

Third Circuit issues big opinion finding child porn sentence unreasonable

The Third Circuit has a major new sentencing decision today in a child porn case.  The decision in US v. Olhovsky, No. 07-1642 (3d Cir. April 16, 2009) (available here), runs 73 pages, but its first paragraph is brief and provides an effective summary of the ruling:

Nicolau Olhovsky appeals the sentence of six years imprisonment that was imposed after he pled guilty to possessing child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B). He argues both that the sentence is unreasonable and that the sentencing court erred as a matter of law in refusing to allow his treating psychologist to testify at the sentencing hearing. For the reasons that follow, we agree. Accordingly, we will remand for resentencing.

UPDATE:  I found the time late this evening to make it all the way through the Olhovsky opinion.  The case and this ruling are remarkable for many reasons, and all federal sentencing fans will want to take the time to review closely the reasonableness discussion of the last 25 pages. 

Of particular note, as Peter G. flags in the comments, Olhovsky appears to be the first case in which a circuit found a below-guidelines sentence of imprisonment to be substantively unreasonable as too harsh in light of the overarching parsimony principle of 3553(a).  Yet, because the facts of Olhovsky are so remarkable and distinctive, it seems unlikely that this ruling will have too broad of an impact in other setting.  Still, it is nice to see a panel finally give some real attention to the parsimony principle and to its obligations to judge the substantive reasonableness of a prison term in light of all the 3553(a) factors and not just in terms of the calculated guideline range.

April 16, 2009 at 05:58 PM | Permalink

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Comments

An excellent opinion.

Posted by: Michael R. Levine | Apr 16, 2009 8:00:42 PM

I not even going to read that thing. No opinion which is 73 pages long is worth reading. It's called an opinion for a reason, and people should keep their opinion short. A 73 page opinion not only took an incredible amount of time to write; if someone read it out loud it would probably take at least a day. A opinion doesn't become truer or more valid because it's backed up by a gazillion of words. It's like the lady with a ton of make-up; you wonder what on earth she is hiding.

The Toastmaster system works: you have five minutes. Get in, get it done, go away.

Posted by: Daniel | Apr 16, 2009 8:53:27 PM

Might this be the first appellate opinion since Gall (or since Booker, you might say) to find a below-guidelines sentence of imprisonment substantively unreasonable for being too harsh, on appeal of the defendant? As well as procedurally unreasonable (failure to give meaningful consideration to mitigating defense psych testimony) and infected by non-harmless procedural error (refusal to allow the treating psychiatrist to testify for the defendant, even though he volunteered to do so, because his contract with pretrial services said he should testify only for the government or as a neutral, and the court wrongly wouldn't authorize a defense subpoena).

Posted by: Peter G | Apr 16, 2009 9:37:07 PM

The wordiness and the lawyer gibberish is itself a crime. It requires that people hire a lawyer to translate it. This rent seeking method was taught to the 13th Century English lawyer by the French.

Any lawyer utterance in the criminal law that exceeds the sixth grade reading level violates legality, mandated by Hudson, 1812, and fails to provide notice, violating Fifth Amendment procedural due process.

http://en.wikipedia.org/wiki/United_States_v._Hudson_and_Goodwin

As such, any utterance above the sixth grade level is void. Because this comment on a criminal law decision exceeds the sixth grade level, it itself is void. That these garbage utterances are not voided by appellate courts just shows the collusion of cult criminals among themselves. These garbage opinions are themselves crimes against the Constitution.

Posted by: Supremacy Claus | Apr 16, 2009 9:40:02 PM

In the Third Circuit's defense, I've never seen any COA use an opinion format that puts fewer words on each page.

Posted by: Jay | Apr 17, 2009 12:21:57 AM

Daniel, it's only about 11,627 words, Word says. What's the limit? In California, the brief limit is 14,000 without petitioning for more.

Posted by: George | Apr 17, 2009 1:54:14 AM

Amazing opinion; and unique is the operative phrase. I don't see the likelihood of my Circuit (5th) ever crafting such an opinion to be very high. I wonder whether the fact that one of the judges was an assigned Senior from the Ninth Circuit will have any impact on en banc possibilities. It definitely could have been formatted into much fewer pages; I didn't detect any superfluous or windy passages, though.

Posted by: Mark#1 | Apr 17, 2009 3:36:23 AM

Give the language about how the sentencing judge had lost track of the offender and focused on the offense I am somewhat surprised that they didn't require that the matter go before a different judge.

Posted by: Soronel Haetir | Apr 17, 2009 6:11:42 AM

According to the DOJ, child porn has victims, the children in the depiction.

Either the word, reasonable, is subjective. Or, it means, in accordance with the New Testament. In either case, it is unlawful.

Then there is this. I had to stop reading after this initial passage. These are not established factors in pedophilia. Those are indicia of violin music started during the drafting of the opinion. Someone explain the relevance of this evidence to sentencing, except as a pretext for love of the criminal.

"Nicolau Olhovsky was born with several birth defects,
including a concave chest (pectus excavatum). When he was eight months old, he underwent heart surgery in an attempt to correct defects in his heart and aorta, and he underwent a second operation at age 14 to correct his concave chest.

Olhovsky’s parents divorced when he was seven years
old. Following the divorce, he and his sister lived with their mother until his arrest in this case. His mother has been permanently disabled as a result of an automobile accident in 1997.

It is uncontested that Olhovsky was awkward and isolated as a child. He was bullied and teased at school because of his slight build and physical limitations. As a result, he spent much of his time alone in his room with a computer. It is also uncontested that he was so depressed and suicidal at times that he was admitted to a psychiatric facility in 2004, and that he cut himself with a knife at one point."

Posted by: Supremacy Claus | Apr 17, 2009 7:09:25 AM

SC-- the idea is to describe the genesis for his interest in child pornography and how he came to be a sort of different pedophile (if he could even be called that). The legal point is then that he had unique circumstances that, procedurally, the sentencing judge did not consider, which led to a substantively unreasonable sentence.

The opinion persuades me that the sentencing judge did not ensure that the sentence was not greater than necessary to comply with the purposes of sentencing. That's a statutory command that dictates how the sentencing judge's reasoning must go. There's a decent amount of evidence in the judge's statements that he didn't do that.

Posted by: Thirteen | Apr 17, 2009 11:04:48 AM

What is with that format? The margins are almost 2.5 inches all around...

Doug trumpets this as a substantive reasonableness decision, but I felt that they really blurred the line between procedural and substantive (as is prone to happen, of course). They say it is substantively unreasonable given the procedural errors; that seems to imply that, if the district court had fully considered the mitigation and provided an explanation for discounting it, the same sentence could be substantively reasonable based on this record.

Posted by: Observer | Apr 17, 2009 11:15:52 AM

Mandatory guidelines served Equal Protection. Now arbitrary sentences serve subjective personal sympathies and the mood variability of the cult criminal on the bench.

Posted by: Supremacy Claus | Apr 17, 2009 4:41:13 PM

SC-- No one in the medical profession ever exhibits rent seeking behavior? What about doctors who over-prescribe meds merely because they can get free trips from drug companies? Sounds like more than just one profession is eligible for membership in your "criminal cult".

Posted by: Scathing Dissent | Apr 17, 2009 6:35:39 PM

SD: Please address the blog entry.

Posted by: Supremacy Claus | Apr 17, 2009 8:51:34 PM

Haha. . .That's rich. Especially from someone who shoots the wheels off of every discussion with his own personal millstone about some bizarre "rent-seeking" ditherall. . .

Posted by: Mark#1 | Apr 17, 2009 10:05:34 PM

Mark: If I brought you mirth, my raison d'etre is fulfilled.

Posted by: Supremacy Claus | Apr 18, 2009 10:16:51 AM

Maybe you need to be a lawyer (and possibly even a prosecutor) to see much wisdom or virtue in the sentencing guidelines.

To me, Olhovsky underscores the absurdity of the notion offenders and offenses can be justly plotted on a formulaic grid of crimes and punishments...give or take a variance point or two.

Face it; the guidelines' raison de tre is the leverage they give prosecutors to coerce plea agreements. The guidelines don't need tweaking; they need to wither with precedents like Booker and Olhovsky and ultimately fall into disuse.

Victoria Toensing -- a seemingly bitter, lock-‘em-up-and-throw-away-the-key authoritarian if ever there was one -- played a key role in establishing the guidelines' draconian sentences. So it’s no surprise sentencing disparities were cut by letting homogenized crimes fit mindlessly harsh punishments.

Pity poor Mr. Olhovsky. But for "creative" prosecutors straining to conjure up victims in "novel theories" on child-porn possession statutes, he might still be minding his own pathetic business in the privacy of his home.

Posted by: John K | Apr 22, 2009 2:59:59 PM

A fantastic and well-reasoned opinion. Nice to see the 3rd having the guts to stand up to such a politically unpopular issue. Gives me some faith. As to the page length, they use font size and margins reminiscent of Dr. Seuss. I'm sure you can get through it if you sound out the long words.

Posted by: Izaak | Apr 24, 2009 2:53:28 PM

Does he want his sentence reduced? I firmly believe child porn offenders should have not less than 20years

Posted by: live jasmin | May 30, 2009 7:46:16 PM

If a hard working tax paying man who has no criminal record, out of curiosity surfs the internet and looks at some photos of underage nude girls and gets caught, he gets a minimum 5 years in federal prison.

How is that going to help our society? This is so backwards.
For a fraction of the cost of one year in prison (or one year lost tax revenue from that man cause he would be in prison) could pay for a much needed mandatory 5 year sex addiction treatments and counseling.

Men become worse in prison, that's a fact.
This sex addict treatment would help him from ever looking at any porn again and would prevent his innocent family from the devastation caused by the loss of their father or son etc. Porn ruins families.

A first time child porn possession charge with these hash penalties and consequences is insane. This does not help the innocent people and children whose nude photos are floating around in cyber space waiting to be downloaded with one click of a mouse.

The harsh penalties do not help the first time sex addict who needs treatment asap, but instead the prison teaches him to now become a real criminal.

It does not help the sex addict's family because they lose the support of their family member and gain the extreme public oppression of being related to societies new public sex predator and lastly it does not make our society any safer nor help our economy.

Then who does it help?
Well obviously law makers, those in government dependent on their government jobs, who are or were attorneys, state and federal attorneys, homeland security agents, local police detectives.
The arrest and prosecution of even a first time child porn charge gives those listed above, job security, the appearance that they are tough on crime, this helps them to get higher future funding and re-election etc.

This long comment is only in regards to the first time internet child porn possession charge. Not those who create, distribute and sell child porn. Nor those who hurt and molest children. Prison is there to protect society from those dangerous individuals.

A concerned citizen, Thomas

Posted by: Thomas | Jun 8, 2009 9:17:24 PM

As a close friend of "Mr. Olhovsky," knowing both him and his family pre-, during, and post trial, I have seen the causes and effects of it all. He is not your 'child pornography producing old man luring children from the playground pedophile.' He is a college student, a socially phobic young adult. After he got out of prison, he has been ostracized from everything he does, and everyone he knows. His own family and friends have cast him away. Anyone who knows someone who has committed a crime, from a simple speeding ticket to murder, knows that THEY ARE STILL A PERSON, not a charge on a paper. And for those of you who are going to reply to this comment as "oh they are just a friend," well I also happen to be a licensed social worker. Don't believe anything you read, because you don't know all the facts unless you know the person.

PS - Thank you Thomas for your dutiful insight.

Posted by: Anon E. Mouse | Apr 30, 2012 7:28:19 PM

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