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August 25, 2009

Third Circuit finds probation sentence for child porn downloading unreasonable

In yet another noteworthy child porn sentencing case, the Third Circuit today reverses a below guideline sentence as unreasonable in US v. Lychock, No. 06-3311 (3d Cir. Aug. 25, 2009) (available here). Here is how the opinion gets started:

The government appeals a sentence of five years probation and a $10,000 fine imposed on George Lychock for his knowing possession of between 150 and 300 images of child pornography.  The applicable Sentencing Guidelines range, as both parties had agreed, was 30 to 37 months.  We agree with the government that Lychock’s sentence was procedurally and substantively unreasonable.  We will vacate the judgment of sentence and remand this case for resentencing.

August 25, 2009 at 01:02 PM | Permalink

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Comments

That is noteworthy! I think it's the first time I recall seeing a sentence declared *substantially* unreasonable since Gall. I wont say I agree but it's nice to see a court taking its responsibility in this area seriously.

Posted by: Daniel | Aug 25, 2009 1:54:03 PM

Now that I read this case fully it's not as interesting as I thought. Ignore my comment above.

Posted by: Daniel | Aug 25, 2009 2:01:59 PM

The Circuit is clearly imposing its dislike of the sentence on the dist. ct. Quite simply, this opinion is disguised de novo substantive reasonableness review. In fact, the panel mentions the abuse of discretion standard only once, in passing.

There are many, many things wrong with the opinion. Here are a few:

1) The panel found that the dist. ct. failed to consider "the need to avoid potential sentencing disparities." However, SCOTUS has said that when the dist. ct. considers the advisory Guideline range, it also considers unwarranted disparities. Gall (“Since the District Judge correctly calculated and carefully reviewed the Guideline range, he necessarily gave significant weight and consideration to the need to avoid unwarranted disparities.”). Upon remand, the dist. ct. should make very clear that it considered the advisory GL range, and that such is the initial benchmark. In doing so, that should take care of (a)(6).

2) I guarantee you, if this were an upward variance case and the dist. ct. did not explicitly mention (a)(6), it would have never been reversed. There's a feeling of a double-standard here.

3) The panel assumes that the dist. ct's sentence was the result of a policy disagreement. I'm not sure if this is so. The panel cited comments by the dist. ct. that, as opposed to reflecting a policy disagreement, just reinforces how thoroughly the dist. ct. considered the (a)(2) factors. Under an abuse of discretion standard, the dist. ct's careful view of the (a)(2) factors deserves deference.

4) To the extent this was a policy disagreement, the panel inappropriately cites Kimbrough's "closer review" comment. However, a "closer review" is NOT warranted when reviewing disagreement with the child porn GL. As should be abundantly clear, the child porn GLs are not the result of the Commission's empirical analysis or institutional advantage. As Kimbrough makes very clear, a "closer review" is not necessary in such a circumstance, and policy disagreement with such GLs should be deferred to.

5) The panel disparages the dist. ct. for not explaining its "disagreement with the policy judgments of Congress." Yet, unless a statutory directive to the dist. ct. is involved, sentencing disagreements with Congress (as opposed to the Commission) are to be deferred to. The panel does not recognize this.

6) In addition to being de novo review in disguise, the panel's analysis is also "proportionality review," but less well disguised. The panel implies that a smaller variance may be warranted based on the dist. ct’s reasoning, but that a sentence of probation needs to be supported by more factors. If this isn’t proportionality review, then what is?

In essence, this opinion directly contravenes and/or misreads Gall and Kimbrough in many respects. On remand, the dist. ct. should impose the same sentence, but make a better record. Specifically, read Gall carefully and make the same record that was made in that case, as well as cite passages from Gall on its analysis of particular 3553(a) factors. E.g. Gall (““a sentence of imprisonment may work to promote not respect, but derision, of the law ...”). Having done so, I'd like to think that a principled panel would find it hard to reverse.

Posted by: DEJ | Aug 25, 2009 3:05:31 PM

Huh. The Fifth has upheld probation for CP sentences 2x, though I think those were on plain error.

Daniel- the 9th held that a within-guidelines sentence was substantively unreasonable in a reentry case. But that may go en banc?

Posted by: Texas Lawyer | Aug 25, 2009 4:46:20 PM

DEJ. The problem I have with this case is that the court also finds a procedural reasonableness problem and in this case I'm tending to agree that there really is one. They directly tie the procedural one to the substantive, meaning that it's possible (don't know how likely) that if the procedural one is fixed the substantive will be as well. As I read the case, you can't really separate the two (procedural and substantial) as cleanly as I thought.

BTW, I agree with you on proportionally review. It's a big problem that courts just don't seen to grasp.

Texas Lawyer. Possible I overlooked or just forgot. It certainly would be rare to see a sentence overturned for substantive unreasonableness alone.

Posted by: Daniel | Aug 25, 2009 6:39:46 PM

"They directly tie the procedural one to the substantive ... you can't really separate the two (procedural and substantial) as cleanly as I thought."

I agree entirely. This distinction between procedural and substantive is very messy. I, too, used to think that the two could be cleanly separated. For example, if you can impose the same sentence length on remand, it's a procedural error. If the court cannot impose the same sentence on remand, it's a substantive error. Seems simple...but it's not. As Daniel correctly explains, this case implies that a better record could result in the same sentence length being approved, yet the Court also finds the sentence substantively unreasonable.

Posted by: DEJ | Aug 25, 2009 6:57:22 PM


This opinion is a first step toward establishing the bulwark that is needed to prevent discretion's slow and inexorable slide into caprice.

Posted by: mjs | Aug 26, 2009 1:30:09 PM

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