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May 10, 2010

Notable Eleventh Circuit ruling on a new media criminal justice issue

Though not principally a sentencing case, a new opinion today from the Eleventh Circuit addresses a new media issue that is arising more and more frequently in sentencing settings.  The ruling in US v. Phaknikone, No. 09-1008 (11th Cir. May 10, 2010) (available here), gets started this way:

The main issue presented in this appeal is whether the district court abused its discretion by admitting the profile page, subscriber report, and photographs from the MySpace.com account of Souksakhone Phaknikone to prove that he committed a string of bank robberies “like a gangster.” Fed. R. Evid. 404(b).  Phaknikone appeals his fifteen convictions of armed bank robbery, 18 U.S.C. § 2113(a), (d), carrying a firearm in relation to a crime of violence, id. § 924(c), and possession of a firearm by a convicted felon, id. § 922(g)(1), and his sentence of 2,005 months of imprisonment for those convictions.  Phaknikone argues that the district court abused its discretion by admitting the MySpace evidence because it was offered to prove that he acted in conformity with his bad character.  We agree, but in the light of the overwhelming evidence of Phaknikone’s guilt, the error was harmless. We also reject Phaknikone’s remaining arguments that the district court abused its discretion in its answer to a question of the jury; that section 922(g)(1) violates the Commerce Clause; that the district court misinterpreted section 924(c); and that his sentence is unreasonable.  We affirm Phaknikone’s convictions and sentence.

May 10, 2010 at 05:29 PM | Permalink


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I also concur. What can the guy even do if his conviction was remanded? He would still get a conviction.

Posted by: N/A | May 10, 2010 5:32:55 PM

i have to agree. if you get caught in the act with the gun. don't complain when they show an old photo you posted on a public forum SHOWING the gun.

Posted by: rodsmith | May 10, 2010 10:22:53 PM

Is anybody concerned that absolutely nobody was injured during these holdups, though this ridiculous 167 year sentence was assessed pursuant to the advisory guidelines? I mean, wouldn't 80 something or 60 something years have accomplished the same thing?

Posted by: Mark # 1 | May 10, 2010 11:08:15 PM

What is the practical difference between a 167 year sentence and an 80 year sentence in the federal system?

Posted by: Talitha | May 11, 2010 10:54:39 AM

none. Both are overboard considering the possible lifespan of the offender. Might as well just make it life without parole and be done with it. Of couse that kind of sentence would be overtuned in an instant and the da's and judge know it.

Posted by: rodsmith | May 11, 2010 12:04:34 PM

The extremely high sentence in this case was NOT caused by the Sentencing Guidelines. As explained in the opinion, nearly all of the sentence arose from the application of the mandatory-minimum provisions in 18 U.S.C. 924(c).

The statute mandates a 7-year minimum sentence for a first conviction of carrying a firearm during and in relation to a crime of violence (if the firearm was brandished) and a 25-year minimum sentence for subsequent convictions of carrying a firearm during and in relation to a crime of violence. The defendant therefore received a total of 157 (= 7 + 6*25) years for his seven convictions under this provision. The Sentencing Guidelines accounted for only the remaining 10 years and 1 month of his sentence, the portion imposed for the underlying robberies.

Any criticism of the sentence should not be directed at the Sentencing Guidelines, but at the mandatory-minimum provisions of 18 U.S.C. 924(c) and the manner in which they were applied in this case.

Alan Viard
American Enterprise Institute

Posted by: Alan Viard | May 12, 2010 6:36:38 AM

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