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August 6, 2009

Remarkable coda at end of First Circuit opinion affirming child porn sentence

The First Circuit yesterday in US v. Stone, No. 08-1459 (1st Cir. Aug. 5, 2009) (available here), affirmed a long within-guideline sentence for a first offender in a child porn case.  The opinion talks through a number of sentencing issues, though what make the ruling  blog-worthy is this remarkabl final paragraph in Stone:

We add a coda.  Sentencing is primarily the prerogative of the district court, and the sentence imposed in this case is within permissible limits.  There is no error of law and no abuse of discretion.  That said — and mindful that we have faithfully applied the applicable standards of review — we wish to express our view that the sentencing guidelines at issue are in our judgment harsher than necessary.  As described in the body of this opinion, first-offender sentences of this duration are usually reserved for crimes of violence and the like. Were we collectively sitting as the district court, we would have used our Kimbrough power to impose a somewhat lower sentence.

This coda — which strikes me as truly unprecedented — surely provides little solace to the defendant whose long prison sentence was affirmed.  But it should provide inspiration and assistance to practitioners and judges within the circuit who might otherwise worry about how the First Circuit would view significant downward variances from the child porn guidelines in other cases.

 Some related federal child porn sentencing posts:

August 6, 2009 at 06:22 PM | Permalink

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Comments

This coming from two conservative jurists who were Reagan appointees.

Similar to crack offenses, no district court judge should ever sentence a first-offender child porn defendant to a Guideline sentence. Is it a serious crime? Yes. But are the child porn Guidelines outrageous? Yes.

Sending this guy to prison for 17.5 years is appalling. What good comes from a 17.5 year sentence that wouldn't have come from a sentence half that?

Posted by: DEJ | Aug 7, 2009 3:06:09 PM

On another note, this is another example of a Circuit that correctly recognizes Kimbrough (and Spears) are not limited to crack cocaine cases

"We have interpreted Kimbrough as giving district courts discretion to disagree with many guidelines, not just the crack cocaine guidelines at issue in Kimbrough." (Slip Op. at 11)

Posted by: DEJ | Aug 7, 2009 3:10:25 PM

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