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August 21, 2009

Seventh Circuit affirms stat max sentence in child porn case

The Seventh Circuit finds reasonable a 20-year statutory maximum sentence in a child porn case today in US v. Nurek, No. 07-3568 (7th Cir. Aug. 21, 2009) (available here).  Here is how the opinion starts:

Joseph Nurek pleaded guilty to receiving child pornography in violation of 18 U.S.C. § 2252A(a)(2)(A) and was sentenced to 240 months in prison, the statutory maximum.  On appeal Nurek challenges the district court’s application of the two-level sentencing guidelines enhancement for obstruction of justice, see U.S.S.G. § 3C1.1; the government’s refusal to move for a third-point reduction in his offense level for acceptance of responsibility, see U.S.S.G. § 3E1.1(b); the district court’s use of the 2006 Guidelines Manual (in effect at the time of sentencing) instead of the 2003 Guidelines Manual (in effect at the time of his offense); and the overall reasonableness of his sentence. We reject these challenges and affirm.

Upon reviewing the decision and the underlying facts, I am a bit more troubled that the defendant here was allowed to plead guilty to a single count with a  20-year statutory maximum than by the fact that he got the max.

August 21, 2009 at 12:00 PM | Permalink

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Comments

On the one hand, it's hard to understand how it is reasonable to get 20 years for downloading 1 image. On the other hand, the facts described in the case strongly suggest this guy was up to much more than that. True, he can only be punished for what he was convicted of, but I think, rightly or wrongly, it's becoming pretty clear that these CP cases are being used to lock away sex offenders in lieu of prosecutions for sex crimes which require proof that is more than the simple production of computer images. The technology has made locking-up sex offenders much easier (but does so by using a very wide net).

Posted by: Steve | Aug 21, 2009 12:38:53 PM

Really Doug, I am astonished. You have trolled this blog more than once about you hatred for acquitted conduct. Yet the clear implication of your remarks is it's ok to sentence someone for conduct which was not even prosecuted. How charming.

Posted by: Daniel | Aug 21, 2009 1:19:23 PM

Try as I might, I'll never understand the guidelines.

"The resulting advisory guidelines range was 292-365
months, well above the statutory maximum of 240 months,
so the range defaulted to the statutory maximum." (p 6)

While the default may serve as a check and balance, how can the minimum within the range be above the stat max? It doesn't make any sense.

Danial, people often say, "I'm against the death penalty, but in this case...."

Posted by: George | Aug 21, 2009 1:58:02 PM

George,

As I understand it, guideline ranges are computed from criminal history combined with offense level, adjusted by enhancements and mitigating factors. Since that proceedure is applicable for all crimes, and is divorced from the statutory sentencing range it does not surprise me at all that the guidelines can produce results above the statutory maximum.

Look at the cases of multiple convictions with consecutive sentences producing sentencing in the multiple centuries for an example.

Posted by: Soronel Haetir | Aug 21, 2009 2:33:22 PM

Soronel, thanks for explaining it, or trying to. I've read opinions that explained it and I thought I had it, but along comes something like this. Consecutive sentences are easy, but the guidelines in this case give the impression they are illegal, which is not a good impression even if they made sense. Add the complexity of the calculations and it difficult to understand how something so confusing could serve as a deterrent. Maybe "the sentence is long, long, long" should suffice but do people get it? I don't and believe me, I've tried.

Posted by: George | Aug 21, 2009 2:58:47 PM

Daniel,

There is a difference between sentencing based on acquitted conduct and sentencing based on uncharged relevant conduct. The difference, of course, is that in the case of acquitted conduct a finder of fact has already said "not guilty" and yet the government gets another bite at the apple, whereas in the case of uncharged relevant conduct the government is not getting a second bite at proving the facts.

I certainly recognize that one could object to the use of uncharged relevant conduct, but that debate is for another day. My point is simply that I do not think acquitted conduct and uncharged conduct are strongly analogous.

Posted by: A. Nony. Mous | Aug 21, 2009 4:24:31 PM

Thanks A. Nony. Mous for helping Daniel understand what should be an obvious and basic and important distinction between acquitted conduct and uncharged relevant conduct. Moreover, in the Nurek case, the other offenses were CHARGED, but the government --- for reasons I would question --- allowed this defendant to plead guilty to only a child porn count even though that seemed to be a lot less than this guy was guilty of.

Just as I am troubled by defendants getting sentence based on charges for which they were acquitted, I am also troubled by defendants avoid responsibility via plea deals for charges for which they are clearly guilty. This is why, for example, I was troubled that former Judge Kent got such a sweet deal for his sex crimes, and also why the CP plea cases are becoming the (too?) easy way for the government to prosecute sex offenders.

Posted by: Doug B. | Aug 21, 2009 9:54:48 PM

Oh come on, guys that is a distinction without a difference.

"whereas in the case of uncharged relevant conduct the government is not getting a second bite at proving the facts."

Of course that's true. *But that's because the government had no facts to begin with.* You might argue that as a practical matter because he was charged the government had facts, but that has no *legal* meaning since the only thing he was found guilty of by the court was the one count. Legally, all those charged counts are moot. Either a fact is legally relevant it is not. Whether it was irrelevant before the guilty verdict or after the guilty verdict is of no moment whatsoever as far as sentencing is concerned.

The only way your theory makes any sense is if you wish to believe that the government had proof of his guilt but let him off anyway but still that guilt (never proved in a court of law) should be considered anyway at sentencing. And that is pure hornswagggle and you both know it.

Posted by: Daniel | Aug 21, 2009 10:06:57 PM

Doug, I don't see how being sentenced to a higher sentence based on uncharged conduct is better than acquitted conduct. Indeed, it seems worse. With acquitted conduct, the Government at least thought there was strong enough evidence to convict. With uncharged conduct, the Government, presumably, didn't even think it had a chance of obtaining a conviction.

Posted by: Better? | Aug 22, 2009 12:50:38 AM

The acquitted conduct thing has been discussed here before. In a nutshell, (1) a jury finding of "not guilty" is not the same thing as a finding of innocence, and (2) the government doesn't get a "second bite at the apple" because under Apprendi the sentence can never go past the maximum permitted for the offenses for which the defendant either pled guilty or was found guilty by a jury.

Re: (1), if the prosecution doesn't prove something beyond a reasonable doubt, the jury has to return a verdict of not guilty. Suppose that "beyond a reasonable doubt" means something like 95% certainty that the defendant did it. If the jury is 80% sure or 94% sure the guy's guilty, he gets the same "not guilty" verdict as if the jury 100% sure that he's innocent. Acquittal and exoneration are not synonyms.

Re: (2), if you're convicted of a crime that has a statutory maximum sentence of 20 years, no acquitted conduct or uncharged conduct will ever force you to spend a day more than 20 years in prison.

If that makes you unhappy in a particular case, then the fault lies with legislatures in the way they define offenses and set sentences. If, for example, Congress says that the statutory maximum for a single instance of receiving child porn is 20 years, and puts no additional elements in the offense, that means that *anyone* receiving child porn is subject to 20 years in prison, and anyone who gets a lesser sentence can, as Justice Scalia has put it (I don't recall the quote exactly) "thank the mercy of the tenderhearted judge."

Posted by: anonymous | Aug 22, 2009 7:36:43 PM

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