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June 22, 2010

Sixth Circuit panel finds five-day sentence for child porn offense substantively unreasonable

The Sixth Circuit handed down US v. Christman, No. 08-4474 (6th Cir. June 22, 2010) (available here), yet another notable sentencing decision in yet another ugly child porn case.  The case appears to have been handled poorly in a variety of ways, as evidence by this explanation at the start of the opinion:

Richard Christman pled guilty to two counts of possessing child pornography in January 2005 pursuant to a plea agreement calling for dismissal of the remaining counts against him, four counts of distribution child pornography. The district court sentenced him to 57 months in prison, a within- Guidelines sentence at the bottom of the 57-71 month recommended range. Several months later, the district court admitted that it had relied on impermissible information outside the pre-sentence report in sentencing Christman, and Christman appealed his sentence to this Court. A panel of this Court agreed, and it vacated and remanded the case for re-sentencing.

At re-sentencing, the district court, over the prosecution’s objection, sentenced Christman to five days in prison—that is, the time that he had spent in custody when first arrested—and fifteen years of supervised release. The court found that this sentence was warranted because Christman had severe back pain, he was his elderly, ailing mother’s primary caregiver, his family believed that he was remorseful, he was a musician and composer, and he had complied with the restrictions of his release on bail. The government appeals, arguing that the district court’s imposition of the nominal prison term cannot reasonably be justified by the factors identified at re-sentencing.

For the reasons set forth below, we find that the sentence was substantively unreasonable, VACATE the new sentence, and REMAND for re-sentencing in light of this opinion. We also direct that this case be assigned to a different judge for resentencing.

June 22, 2010 at 01:26 PM | Permalink

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Comments

I'm a big fan of Judge Martin's sentencing work, but this flunks the test. There's a lot in there that I didn't think he agreed with -- i.e. "While the standard of review does not change based on whether a sentence is inside, just outside, or significantly outside the Guidelines range, the greater the district court’s variance, the more compelling the evidence must be. See id. at 50 (“We find it uncontroversial that a major departure should be supported by a more significant justification than a minor one.”); United States v. Grossman, 513 F.3d 592, 596 (6th Cir. 2008) (holding that it is not improper to “require some correlation between the extent of a variance and the justification for it”)." Nevermind that Gall (and Judge Martin, repeatedly in cases like in his dissent in Vonner) have rejected that approach.

And, I have never understood the idea a sentence can be "unreasonable" because the judge relied on "impermissible factors," unless those factors were something extreme like race. Instead I think the Court and Judge Martin made serious errors by discussing what the Commission and the Court in Koon said were "discouraged factors" and then saying that they are "impermissible" under Booker! I've never seen a Court do that, and I didn't see the Sixth Circuit cite any recent (post Booker) case for that proposition, other than one unpublished case. The logic doesn't work because the entire point of Booker was that anything that falls under the 3553(a) factors (which are very broad) may be considered, and the test is the holistic one as to whether the sentence was "reasonable." Importing this "discouraged" factor test in guts the Booker remedial holding.

Next, the Court confuses procedural and substantive review. Judge Martin says that the district judge's statement at sentencing was insufficient for review, and then labels that as "substantive unreasonableness." Wrong. Although it has "substantive" implications, I've ALWAYS seen that considered "procedural review." Indeed, it is right out of Gall: "It must first ensure that the district court committed no significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the §3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence—including an explanation for any deviation from the Guidelines range." The opinion blunders this.

I don't know what happened. Maybe the judges let their clerks run with this one, but the quality of work is below the minimum standard -- and that sets aside whether I think the sentence was reasonable (probably so, but the issue is more about policy/Kimbrough than anything else, a detail this opinion sidesteps). Ironically, Judge Boggs is on the other side of this issue in the United States v. Stall case -- taking the more liberal position. I wouldn't bank on it but I also wouldn't be surprised if Judges Sutton and Boggs (both of whom treat judges in these cases pretty deferentially) don't push to have this case's errant statements reversed. They definitely should. I'm pretty disappointed.

Posted by: Gregory | Jun 22, 2010 1:59:38 PM

I have not read this opinion in full, but a couple of responses to Gregory.

1. Just because he disagrees with something doesn't mean he can ignore the law of the circuit. All of the things you take issue with in the first paragraph of your post are direct quotes from binding, published opinions.

2. I agree that this is a bit surprising coming from Judge Martin, but one thought I had as a possible explanation is to look at who else is on the panel. I am not too familiar with Judge Duggan, but Judge Griffin is a hard ass of the highest degree. If he had written this opinion, there is no doubt it would have gone further. Perhaps Judge Martin kept the opinion and wrote something he didn't completely agree with in order to cabin the damage.

Posted by: A. Nony. Mous | Jun 22, 2010 3:05:59 PM

Anon: Regarding point 1, yes they are quotes but at the end of the day the case has to be consistent with Gall, which did away from proportionality review. Those quotes came in cases pushing the outer limits of Gall, and (I am familiar with Grossman, less familiar with the others) were really just dicta.

Posted by: Gregory | Jun 22, 2010 3:12:01 PM

I would like to second everything Gregory said. Spot on!

Posted by: DEJ | Jun 23, 2010 12:04:27 PM

I think the thing that got to the Court was the reversal of the district judge's thinking from the first sentencing hearing to the second. Things that didn't matter at first started to matter, and things that mattered at first later didn't. This may just be the reality of pre- and post-Booker sentencings, but the discrepancy in this case was sufficient to cause serious concern about the process (or its transparency). Better to let a new judge decide what the sentence should be, avoiding the potential for inconsistency.

As for "impermissible" factors: the Sixth Circuit's precedents in this area are a shambles, and they directly conflict with Supreme Court precedent, in my opinion. It's going to take some time to work out.

In the end, with all the historic disagreements between some of the judges in the Circuit, this case and Stall show, I believe, that even at the ideological poles, the judges are trying to do what's right in sentencing cases. It's just going to take a lot more work to see if a workable system develops, or whether we're just going to have a long line of ad hoc decisions.

Posted by: Mark Pickrell | Jun 23, 2010 1:36:46 PM

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