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June 30, 2010

Notable new district court opinion addressing effort to defend child porn sentencing guidelines

Regular readers know well the robust on-going debate in the federal courts concerning the federal sentencing guidelines and appropriate sentencing for child porn offenses.  Though most detailed written sentencing opinion on the subject have assailed the operation and severity of the federal guidelines for child porn downloading offenses, earlier this year US District Judge John Adams issued a thoughtful opinion in US v. Cunningham, No. 1:09CR154 (N.D. Ohio Jan. 26, 2010) (discussed here) provided a detailed defense of the federal child porn guidelines.  Now I have received a new opinion from US District Judge Lynn Adelman, US v. Diaz, No. 09-CR-302 (E.D. Wisc. June 30, 2010) (available for download below), which takes on the reasoning of Cunningham and "respectfully disagree[s] with the court’s observations." Here is a snippet of this disagreement:

[T]he Cunningham court argued that the fact that certain enhancements apply on a frequent basis does not serve as a basis for negating the guidelines. Id. at 852-53.  But where, as here, the imposition of those enhancements results in sentences approaching the maximum in criminal history category I, the approach developed by the Commission breaks down. Specifically, the Commission developed the criminal history axis of the Grid based on its conclusion that a defendant’s past record of criminal conduct was directly relevant to the four purposes of sentencing: a defendant with a record is more culpable than a first offender and thus deserving of greater punishment; deterrence requires that a message be sent that repeat criminal behavior will aggravate the need for punishment with each recurrence; to protect the public, the likelihood of recidivism must be considered; and repeated criminal behavior is an indicator of a limited likelihood of successful rehabilitation.  See U.S.S.G. ch. 4 introductory commentary.  If even a first offender approaches the maximum based on the offense level alone, chapter four becomes irrelevant, and a first-time offender is treated similarly to a recidivist.  That is not what the Commission (or the Sentencing Reform Act) intended.

Download Diaz written sentencing memo

The academic in me who is interested in robust sentencing debate is especially intrigued and excited to see these district judges issuing dueling sentencing opinions providing thoughtful and thorough written accounts explaining just how and why they decided to exercise their sentencing discretion in a particular way.  But the citizen in me who is generally interested in federal defendants facing similar sentencing realities for similar criminal conduct is wondering if and when federal appellate courts or the Sentencing Commission or Congress will try to start herding the district court sentencing cats that continue to stray because the current sentencing guidelines appear to most participants to be providing very poor guidance in the vast majority of child porn downloading cases.

Some related prior federal child porn prosecution and sentencing posts:

June 30, 2010 at 04:32 PM | Permalink

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Comments

Doug --

"[T]he citizen in me...is generally interested in federal defendants facing similar sentencing realities for similar criminal conduct is wondering if and when federal appellate courts or the Sentencing Commission or Congress will try to start herding the district court sentencing cats that continue to stray..."

Not to worry. We have mandatory guidelines and stong appellate enforcement.

How's that? Something named "Booker?" The cats are straying all over the place???

Lan' sakes alive!

Posted by: Bill Otis | Jun 30, 2010 5:11:48 PM

I know that Booker is the key turn allowing this to happen, but it would not be so ugly if federal appellate courts or the Sentencing Commission or Congress were to tend to the cats. All of these folks who could and should be taking steps to seek to reduce dispartities in this arena and others seems largely content to let the cats all roam. And, because the cats are just trying to faithfully discharge their responsibilities under the SRA, they cannot be blamed for often roaming in different directions.

Posted by: Doug B. | Jun 30, 2010 5:43:18 PM

Doug --

The Booker remedial majority all but invited Congress to re-visit the issue. Alas, it hasn't happened. Not to get snarky about it, but the reason it hasn't happened is that the defense bar is tickled pink with more straying cats -- uh, make that "discretion" -- because the cats stray almost exclusively in one general direction, that being down the stairs.

If I were a cat, I would make every effort to stay within the guidelines, though no longer forced to. I would think I owed the litigants SOME effort at uniform application of sentencing law.

But not to worry. Somehow, I don't think President Obama is going to nominate me to be a cat. I might, however, get nominated to be a horse -- the one they send to the glue factory.

Posted by: Bill Otis | Jun 30, 2010 6:42:22 PM

Concerning "federal appellate courts," US v. Dorvee, 604 F.3d 84 (2d Cir. 2010) is a good start.

And Bill, you have your wish. Most cats are staying within the Guidelines, and Booker did not work the disruption you claim it did. 2G2.2 is an obvious exception, but that's due to that Guideline's irrationality. Further, if courts, when they actually do exercise their discretion, tend to do so in only one way, it's only because the Guidelines for too long were a one-way rachet for more severe sentences with little justification or need to do so and in contravention of the purposes of sentencing.

Posted by: DEJ | Jun 30, 2010 6:55:54 PM

You are right, Bill, that the judicial cats tend to migrate below the guidelines, but that is because they have an obligation under the SRA to impose a sentence "no greater than necessary" to achieve the statutory sentencing purposes.

Your suggestion that, as a cat, you would put your interest in uniformity above the statutory obligation to be parsimonious fails to respect the instructions Congress put for cats in 3553(a) and suggests that you may not always follow future Justice Kagan's dedication to following the law "all the way down."

Posted by: Doug B. | Jul 1, 2010 9:37:06 AM

Doug --

The cats have an obligation, no less required by the statute, to impose a sentence that reflects the serousness of the offense. And there is absolutely no settled definition of what kind of sentence is "no greater than necessary," since there is, in this context, no settled definition of "necessary." Why would my definition be any worse than that adopted by, say, Jack Weinstein or Nancy Gertner?

If you look at the history of the Guidelines (as I'm sure you have, more than just about anyone), you'll see that the percentage of within-guidelines sentences that get affirmed is considerably greater than the percentage of below-guidelines sentences that get affirmed. This was true before Booker and it remains true now, albeit to a slightly lesser extent. It suggests that my respect for rough uniformity and within-guidelines sentencing, in addition to being consistent with the overriding Congressional purpose in adopting the SRA, also finds favor with the reviewing courts.

That in turn suggests that I would be very much on board with following the law "all the way down," as future Justice Kagan has said (in testimony that would make John Roberts proud, since it so often mirrors his, and she has a better smile).

Posted by: Bill Otis | Jul 1, 2010 11:19:57 AM

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