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April 16, 2010

Notable Seventh Circuit opinion upholding 90-month sentence for child porn downloader

While on the road yesterday, I mised a notable Seventh Circuit panel ruling inwhich upholds a relatively lengthy (but still slightly below-guidelines) sentence for a (relatively sympathetic?) downloader of child porn.  The opinion in US v. Pape, No. 09-35413 (7th Cir. Apr. 15, 2010) (available here), starts this way:

Jason M. Pape pleaded guilty to one count of possession of child pornography, in violation of 18 U.S.C. § 2252(a)(4)(B) and, on appeal, challenges his sentence. He was sentenced to 90 months’ imprisonment followed by 20 years’ supervised release.  He now claims that the district court failed to address his non-frivolous arguments in support of a two-year sentence including a plea for leniency based on his personal history as an upstanding member of his community and his exceptional family responsibilities for his children, some of whom have disabilities.  In addition, Pape contends that the district court failed to address his argument that disparities in the length of pornography sentences among different districts in Wisconsin and the purported lack of careful empirical study underpinning the child pornography Guidelines suggest that a sentence over two years is too high.

We affirm because the district court adequately considered Pape’s arguments about his history and parenting responsibilities.  Moreover, a district court is presumed to have considered arguments about unwarranted disparities if, as here, it sentences within or below the Guidelines, see United States v. Bartlett, 567 F.3d 901, 908 (7th Cir. 2009).  And, although district courts are certainly free to disagree with the child pornography Guidelines as applied to a particular case as long as the sentence imposed is reasonable, the district court here did not abuse its discretion when it implicitly rejected the imposition of a much lower sentence based on a disagreement with the Guidelines range.

April 16, 2010 at 02:27 PM | Permalink

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Comments

So if he was a veteran, he would have gotten the lighter sentence as a previous post on this blog pointed out. I guess it's understandable for judges to consider PTSD a reason for lighter sentencing, but I imagine this particular guy had just as much stress taking care of disabled children. So why double standards just because someone chose to serve and another did not? Are their records any less clean? Why the double standard, should their not be more uniform guidelines in sentencing federal crimes? Why do soldiers and women (mostly) get off easier? Anyone who looks at this stuff needs immediate counseling, not jail sentences. He will come out 90 months later a worse person than he went in, and will he have learned anything or changed? Not without mental treatment. If politicians like Pawlenty can call this a mental disorder to try and buck the ex-post-facto application of Adam Walsh Act (By saying they are patients, not prisoners) then should not those found guilty be treated for such? I guess nine years in jail will show him.. but let that soldier out after less than 2 years because God knows he's suffered for our country.

We all suffer for our country, and we would like to see the Constitution payed attention to and not ignored.. we would like to see sentencing that makes sense, not throwing away the key and hoping he can turn it around himself in 90 months. Just ridiculous.. this guy needs help, and he won't get it. He'll only receive violent retributions against his non-violent crime for 8 years in prison, then be released into a public that does not care if he gets well, just caring that he stays away from them. He'll be back in within 6 months for failure to comply, because the system is set up to make him fail.

Posted by: tbucket | Apr 16, 2010 4:05:13 PM

Tbucket, I agree. A veteran who fought for our country shouldn't be any less liable for prosecution, but should receive a lighter sentence. The guidelines, which are "recommended" and sentences outside of the guidelines, which are subject to "appeal" are ridiculous. Let the judge have more discretion in what it want's to give the defendant based on his life. Guidelines are flawed because every person is different. But not in different as to be judged by race, ethnicity, religion. I saw a couple of cases, regarding this, where a specific race, had a much lower sentence for a crime, then a other race.

Posted by: N/A | Apr 16, 2010 4:42:50 PM

I think I prefer the rule from some other circuits wherein non-frivolous defense arguments must be specifically addressed in order for a sentence to meet procedural reasonableness. Simply saying "You already got a below guideline sentence so your arguments must have been taken into account" is a cop out.

Posted by: Soronel Haetir | Apr 16, 2010 5:43:57 PM

"a district court is presumed to have considered arguments about unwarranted disparities if, as here, it sentences within or below the Guidelines, see United States v. Bartlett, 567 F.3d 901, 908 (7th Cir. 2009)"

Isn't this against Gall? I'm not talking about this case in particular, but about the general tendency of the Circuit Courts to uphold within guideline sentences for Child Pornography, and reverse below guideline sentences for the same crime.

Posted by: E | Apr 16, 2010 9:18:20 PM

E, with Gall, you have to give clear and good reason's why you chose to depart from the guidelines. An opinion from another Circuit Court, ruled that if the district court gave, 3 opinion's or reasons why the defendant's below guideline sentence is imposed, but only 1 is at fault, the sentence cannot be overruled. Without a good reason why you have to depart, the Circuit can remand the count back to District Court.

Posted by: N/A | Apr 16, 2010 11:17:35 PM

Downloading porn is like picking up a stray copy on the street of the National Enquirer. If one does not do anything with the trash then one has only picked it up and possibly erred in picking something off the internet. Sending it along to others is a different story.
The argument that one who downloads porn is then on the road to child porn personal abuse offenses is like saying that a subscriber to the National Enquirer will commit all the offenses detailed therein such as adultry, child abuse etc.
The country cannot afford the tax dollars it will take to incarcerate these chumps. Why can they not be put on a trash detail at suburban shopping centers near the homes of the judges who send them off to prison. Let them pick up the trash, including the Enquirer, to keep society free from such porn? This jail culture does America nothing good and much evil.

Posted by: mpb | Apr 19, 2010 11:13:22 PM

I love your post, thank you for sharing.

Posted by: thomas sabo | Oct 29, 2010 4:54:11 AM

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