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July 16, 2010

Second Circuit reverses another child porn sentence based on its Dorvee opinion

As regular readers may recall, the Second Circuit issued back in May a significant reasonableness ruling in the child porn Dorvee case (basics here; commentary here).  Today in US v. Tutty, No. 09-2705 (2d Cir. July 16, 2010) (available here), another Second Circuit panel relies on Dorvee to reverse another child porn sentence.  Here is how the opinion starts:
Defendant-appellant Jason E. Tutty pleaded guilty to one count of receiving child pornography in violation of 18 U.S.C. ยง 2252A(a)(2)(A).  He was sentenced by the United States District Court for the Western District of New York (Siragusa, J.) to 168 months' imprisonment.  On appeal, Tutty challenges the substantive reasonableness of his sentence. Upon review of the record, we conclude that the district court erred when it held, relying on outdated law, that it did not have the authority to impose a non-Guideline sentence based on policy considerations applicable to all defendants.  Moreover, as we recently recognized in United States v. Dorvee, 604 F.3d 84 (2d Cir. 2010), the child pornography Guidelines present important policy considerations, and unless they are "carefully applied," they "can easily generate unreasonable results." Id. at 98.  We vacate the judgment and remand to the district court for resentencing to correct the procedural error and to consider the policy concerns addressed in Dorvee.

July 16, 2010 at 10:38 AM | Permalink

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