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July 27, 2009

Sixth Circuit rules – in an unpublished decision! – that reduced child-porn sentencing is substantively unreasonable

A Sixth Circuit panel issued an important and potentially controversial decision today in a child porn case, though the ruling in US v. Harris, No. 07-4175 (6th Cir. July, 27, 2009) (available here), was handed down as an unpublished opinion.  Here is how the opinion starts and ends:

David Harris pleaded guilty to possession and distribution of child pornography.  The district court calculated an advisory Guidelines range of 210-262 months for Harris.  The district court sentenced Harris to 84 months in prison with three years of supervised release and mandatory mental health treatment.  For the reasons given below, we vacate the sentence and remand for resentencing....

The bottom line is that the factors the district court relied on, as articulated in the record, do not appear to justify a variance of this size.  This is not to say that the variance itself is per se unreasonable – only that the district court must provide a sufficient justification for such a major variance.  The district court in this case did not do so.  Instead, the district court placed an unreasonable amount of weight on Harris’s character.  It did so despite Harris’s lack of distinguishing characteristics and despite the seriousness of the offense.  Accordingly, we find the variance here substantively unreasonable based on the current record.

Though it is clear after Gall, Rita, and Kimbrough that we should not disturb a district court’s discretion absent substantial justification, we remain responsible for ensuring the reasonableness of the sentences imposed by district courts.  Accordingly, we VACATE and REMAND for resentencing consistent with this opinion.

This ruling seems especially significant because the panel declares a seven-year prison sentence for a non-violent, first offender "substantively unreasonable."  And yet the fact that the decision is released as an unpublished opinion perhaps indicates that the panel does not want its ruling to be too consequential.  Further still, the opinion suggests that a sentence somewhat below the 17+ years recommended by the guidelines could be reasonable, but it gives no real guidance as to when the magic reasonableness line lies between 7 and 17 years in prison for this kind of offense and offender

Some related federal child porn prosecution and sentencing posts:

July 27, 2009 at 12:30 PM | Permalink


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"non-violent"--Madoff was a non-violent offender too . . . .

Posted by: federalist | Jul 27, 2009 12:48:51 PM

"Step right up! You're the next contestant on Wheel of Jeopardy! Will it be the housgow or freedom? Nobody knows the answers in advance! And we make up the rules as we go along!"

Posted by: Soronel Haetir | Jul 27, 2009 1:10:24 PM

This is basically bogus. Arguably the panel's issue was with the rationale provided as much as the substance itself -- an approach I think is far more justifiable post-Gall, Kimbrough, etc. But this "we disagree, seven years ain't enough!" is illegitimate. The unpublished disposition screams it too. Didn't the Sixth just uphold a huge downward variance in a similar case? A far bigger deviation?

And like Prof. Berman implied, the panel has a dark view of what is "not enough justice" when the seven year sentence for a first-time offender is "unreasonable."

Posted by: GMD | Jul 27, 2009 1:48:30 PM

This is where the line between procedural and substantive blur. The Court says the sentence is substantively unreasonable, but not "per se" so. "Only that the district court must provide a sufficient justification for such a major variance." Providing an insufficient justification for the variance is entirely a procedural error.

In my opinion, if the district court is able to re-impose the same sentence upon remand, then the reversal is not for substantive reasonableness.

Posted by: DEJ | Jul 27, 2009 2:41:48 PM

DEJ. It's interesting because in my aborted attempt at a blog I wrote about this very issue last October in my comments on US vs Levinson.

"The court, without any foundation, is actually attacking a perceived lack of *proportion* and then calling that procedural error under Gall. But Gall specifically says that it is a lack of adequate explanation, not a lack of proportion that is procedural error."

And that's the problem here as well. Courts can remand a sentence because they find it procedurally unreasonable. They can remand because they find it substantially unreasonable. But there is nothing in SCOTUS ruling including Gall that allows a court to reject a sentence becuase it doesn't like the relationship between those two standards. There is no path the district court as to follow, no ratio they have to impose. Gall invites district courts to take a leap into the dark. The appeals court has a right to reject where they land and their jumping technique. But whether the gap is small or large is irrelevant.

"Only that the district court must provide a sufficient justification for such a major variance." I would love someone to show where in Gall or anywhere else that demands this. I don't recall either the words or the standard articulated by "sufficient justification" appearing in any SCOTUS case on this topic.

I don't think the line is blurry at all. I think the courts are deliberately blurring the line.

Posted by: Daniel | Jul 27, 2009 5:21:19 PM

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