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July 28, 2010

Second Circuit reverses below-guideline child porn sentence as procedurally unreasonable

The Second Circuit continues its robust work on reasonableness review in child porn cases with an intriguing new little decision reversing a below-guideline sentence in US v. DeSilva, No. 09-2988 (2d Cir. July 28, 2010) (available here). The opinion starts this way:

We are called upon here to determine whether the United States District Court for the Western District of New York committed procedural error by engaging in clearly erroneous factfinding at defendant’s sentencing when it relied upon a psychologist’s report — which was prepared for use at a pretrial bail hearing — to find that defendant, an admitted child molester, posed no danger to the community.  We hold that the District Court did commit such procedural error and therefore remand for resentencing.

The DeSilva opinion includes lots of important discussion of the Second Circuit's child porn ruling in Dorvee and the role that psychologist reports often play in these child porn cases. Here is a snippet:

Although a psychologist’s report may provide mitigating evidence for the court’s consideration during sentencing, the court must still conduct an independent evaluation of the defendant in light of the factors set forth in 18 U.S.C. § 3553(a).  If the psychologist’s report cannot be squared with the court’s own judgment of the defendant’s culpability and the danger he poses to society, the court is free, in its discretion, to decline to rely on the psychologist’s findings, so long as the court explains its basis for doing so.

Nothing in Dorvee is to the contrary. There, as part of our consideration of a sentence’s substantive reasonableness, we observed that the district court placed more emphasis on 18 U.S.C. § 3553(a)(2)(C) as an aggravating factor than the sentencing record could support.  See Dorvee, 604 F.3d at 94.  Specifically, the district court in Dorvee based the defendant’s sentence, at least in part, on the “assumption” that the defendant posed a danger to the community merely because he had committed a child-pornography offense.  Id.  In relying on that “assumption” — which, we found, lacked record support — the district court also ignored, without explanation, a psychologist’s report that tended to suggest that there was not a great need “to protect the public from further crimes of the defendant.” 18 U.S.C. § 3553(a)(2)(C).  The fact that the record as a whole could not sustain the district court’s application of § 3553(a)(2)(C) supported our ultimate conclusion that the sentence was not substantively reasonable. See Dorvee, 604 F.3d at 94.  We did not, however, suggest that a district court must, without scrutiny, adopt a psychologist’s conclusion that a particular defendant poses no danger to the community.

In short, nothing in Dorvee compels a district court to accept a psychologist’s conclusions at face value.  It is possible, of course, that such a psychologist’s report may be accurate.  But district courts should scrutinize such reports with the same diligence required during any fact-finding at sentencing, especially if the report’s conclusion is at odds with the defendant’s conduct....

Dr. Joseph’s report dealt only with whether DeSilva would be a danger to the community if released to his parents pending trial.  What was relevant for sentencing, however, was whether DeSilva would pose a danger to society once he had served his sentence and was released from prison.  No one suggests that the District Court could have ordered that DeSilva be released to his parents following his term of imprisonment, and thus Dr. Joseph’s opinion had only minimal relevance to whether DeSilva would be likely to abuse another boy after his sentence was complete.  As such, the report should have had little bearing on the District Court’s sentencing determination; it was not, in any event, an appropriate authority for the Court’s finding that DeSilva posed no “danger to the community.”  See J.A. 168-69.  In relying on Dr. Joseph’s report, therefore, the District Court “‘select[ed] a sentence based on [a] clearly erroneous fact[]” and thereby committed “‘procedural error.’” Dorvee, 604 F.3d at 90 (quoting Gall, 552 U.S. at 51).

July 28, 2010 at 11:26 AM | Permalink

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Comments

BTW, the crack/powder disparity issue is about to hit the House floor today. Tea-leaf readers predict passage.

Posted by: Gritsforbreakfast | Jul 28, 2010 12:56:57 PM

Dr. Joseph is a psychiatrist, not a psychologist.

Posted by: flop | Jul 29, 2010 8:55:12 AM

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