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July 29, 2010

Split en banc Eleventh Circuit rules child molester's 17½-year sentence substantively unreasonable

I had an inkling that the full Eleventh Circuit was working on a doozy of an opinion in US v. Irey, a child sex sentencing case in which the circuit nearly a year ago granted en banc rehearing sua sponte after a panel had affirmed a below-guideline sentence (background here and here and here).  And, sure enough, while I was out enjoying an Ohio summer family tradition, the Eleventh Circuit issued an opinion this afternoon in Irey which reverses a below-guideline sentence in for what everyone agreed was an "utterly gruesome" sex offense.  The majority opinion (per Judge Carnes) and multiple other opinions, including dissents, run a total of 256 pages and can be accessed at this link.

Because my belly is full of fried dough, I may not be able to make it through all of the Ivey opinions for a little while.  Fortunately, David Oscar Markus at his blog has this effective summary of the main themes of the various opinion.  And the introduction of the majority opinion by Judge Carnes highlights the heart of the holding:

“The federal courts of appeals review federal sentences and set aside those they find ‘unreasonable.’”  Rita v. United States, 551 U.S. 338, 341, 127 S. Ct. 2456, 2459 (2007) (citing United States v. Booker, 543 U.S. 220, 261–63, 125 S. Ct. 738 (2005)).  With that statement the Supreme Court opened its opinion in the Rita case. Later in the opinion the Court was more specific and emphatic:

In sentencing, as in other areas, district judges at times make mistakes that are substantive.  At times, they will impose sentences that are unreasonable. Circuit courts exist to correct such mistakes when they occur.  Our decision in Booker recognized as much.  

Rita, 551 U.S. at 354, 127 S. Ct. at 2466–67.  We believe that the Supreme Court meant what it said in the Rita opinion and elsewhere about our duty to correct sentencing mistakes. At the same time, we recognize that our substantive review of sentences is deferential and that we only look to see if the district court abused its discretion by committing a clear error in judgment. Even so, the sentence in this case can withstand review only if deference amounts to abdication, if sentencing discretion is unbridled, and if “unreasonable” is a hollow term.  The sentence that the district court imposed is a clear error in judgment, a mistake, and it is our responsibility to “correct such mistakes when they occur.”

The sentence is substantively unreasonable primarily, but not solely, because of the nature and extent of William Irey’s criminal conduct.  The steady stream of criminal cases flowing through this Court brings us many examples of man’s inhumanity to man, and we see a depressingly large number of crimes against children.  But the sexual crimes that Irey committed against some of the most vulnerable children in the world set him apart.  He raped, sodomized, and sexually tortured fifty or more little girls, some as young as four years of age, on many occasions over a four- or five-year period.  He also scripted, cast, starred in, produced, and distributed worldwide some of the most graphic and disturbing child pornography that has ever turned up on the internet.

The horrific nature of Irey’s crimes resulted in an adjusted offense level that would have led to an advisory guidelines range of life imprisonment.  Because the government had charged all of Irey’s crimes in just one count, the statutory maximum was 30 years and that had the effect of reducing the guidelines range to 30 years as well.  The district court, however, did not impose that sentence.  Instead, after deciding that pedophilia was an “illness” that had impaired Irey’s volition, and pronouncing that Irey himself was a victim, like all of the little children he had sexually violated for so long, the district court deviated downward from the 30-year guidelines range and imposed a sentence of only 17½ years.  Our duty to set aside unreasonable sentences requires that we set aside this one.

I suspect that by this weekend I will find my way through all the Irey opinion and will blog some thoughts about the particulars.  As a general matter, I think it is essential for circuit courts step up to their obligation to conduct substantive reasonableness review and to give more content to the substantive provisions of 3353(a).  Now here is hoping that the Eleventh Circuit will also give substantive reasonableness review some teeth to reverse some sentences that seem to be too long in light of 3353(a)'s parsimony provision (even if they are within-guideline sentences) and not just to reverse sentences like William Irey's that seem too short.

Related posts on Irey case:

July 29, 2010 at 05:43 PM | Permalink

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Comments

I've read some absolutely revolting statements of defendants' conduct in the past, but I couldn't even finish the facts section of the appellate opinion.

The district court was completely wrong on this one. Anything short of execution is a gift.

Posted by: Res ipsa | Jul 30, 2010 10:51:19 AM

Res ipsa-- Which makes the government's charging decision even weirder, I think. They could have charged him in a way so as to make a life sentence at least possible, if not actually mandatory.

Posted by: Jay | Jul 30, 2010 11:48:35 AM

Jay--I couldn't figure that out either. I suspect it was part of a plea deal, but with a guaranteed conviction and a nauseating series of disgusting crimes, I don't see why a deal would even be necessary.

Only consolation is, the guy is almost certain to die in prison at the hand of other inmates--or absent that, at least of old age.

Posted by: Res ipsa | Jul 30, 2010 12:07:47 PM

You guys have got it all wrong. As we have so often been told in this space, it's all just public urination, or teenagers sending nudie pictures to one another.

I notice virtually the entire defense contingent here, which has spent months pooh-poohing obscenity crimes, and lauding humane district judges for downward departures, seems to be rather quiet about this case.

The less notice it gets the better, I guess.

P.S. This illustrates why Kennedy v. Louisiana was wrongly decided.

Posted by: Bill Otis | Jul 30, 2010 2:06:18 PM

I've been reading your posts for quite a while, Bill, and it seems that you believe that silence on a post equates to some kind of assent or is otherwise meaningful. I disagree. Not posting a response to something may mean that someone didn't read it or didn't have a reaction or had a reaction and didn't want to share it.

Of course anyone would be appalled by the behavior of the defendant in this case. That has absolutely nothing to do with whether a departure was warranted in another unrelated case, or whether someone convicted of public urination should be forced to register as a sex offender. I'm not sure what you're trying to get at with those examples, but it's possible to feel different ways about the sentences in completely different cases.

So I can "pooh-pooh" obscenity convictions if they're ridiculous and wrong (as in some of the "sexting" cases) and still be repulsed by this case and guess what? There's no contradiction there. Sorry you can't see that.

Posted by: SRS | Jul 30, 2010 3:58:03 PM

It's interesting to note that the Court officially rejects the characterization of Section 3553(a) as the "parsimony principle," in both name and substance. The term has been used quite frequently in academic discussions regarding 3553(a), and has also made its way into some court opinions. I think this is the first time I have ever seen a rejection regarding the terminology and the meaning - See pages 74-76:

"The problem with the parsimony terminology is that the statutory command has two components of equal standing, and it ignores one of them. The requirement is not merely that a sentencing court when handing down a sentence be stingy enough to avoid one that is too long, but also that it be generous enough to avoid one that is too short. Calling the statutory requirement “the parsimony
principle” is as incomplete and inaccurate as it would be to call the requirement “the severity principle.” The reason that defense counsel and those who argue for shorter sentences, either generally or in specific cases, like the term “parsimony principle” is that it tends to slant the discussion toward shorter sentences by emphasizing only that part of the twin requirements. But terminology that is less than completely accurate should not be used to guide judicial decisions.

A more accurate term, if one is needed, might be “the Goldilocks principle,” because the goal is to lock in a sentence that is not too short and not too long, but just right to serve the purposes of § 3553(a). In this opinion, however, we will avoid using a catchword and simply apply the provision as Congress wrote it."

Footnote 22: "The term “parsimony principle” is an example of what Holmes once referred to as an “inadequate catch word[ ],” which could by its “very felicity, delay further analysis.” Oliver Wendell Holmes, Law in Science and Science in Law, 12 Harv. L. Rev. 443, 455 (1899). Judge Tjoflat’s separate opinion says that “[although the court quibbles with the label ‘parsimony principle,’ it does not disagree with the underlying concept.” Separate Op. of
Tjoflat, J., at 158 n.21. To the contrary, we emphatically disagree with the “parsimony principle” terminology and the concept that underlies it, which is that one of the two § 3553(a) principles is to be given predominance over the other. The term “parsimony principle” is an “inadequate catch word” that stacks the deck and we would prefer to deal with result-neutral terms."

Posted by: Buffalo Bill | Jul 30, 2010 6:15:25 PM

Appeasing incensed mobs is always the easy choice but not always the right one. Irey's trial judge deserves praise for resisting any urge he might have had to do that and instead struggling to find the reasoned, temperate decision he ultimately settled upon.

It's what I used to expect and still hope for from judges.

Nobody thinks what Irey did wasn't horrid. And separating him from the rest of us until he's in his late 60s or early 70s only makes good sense. But 30 years (virtual life) would be excessive, given the shrinks' input and the judge's admirable reluctance to punish pathology as if it were pure evil.

Beyond that, it was a stretch for prosecutors to imply Irey was solely responsible for the ghastly plight of the children he hurt. Lots of terrible things had to have happened to those kids before Irey found his way to Cambodia and most certainly continued happening between his visits there.

Irey should pay full price for what he did but not for everything bad that has happened in the sad, short lives of the adolescent Cambodian prostitutes he tormented. Seventeen and a half years and supervision forever seems about right.

Happy now, Bill?

Posted by: John K | Jul 30, 2010 6:28:39 PM

SRS --

When we see dozens and dozens of comments from the defense bar about sexting and public urination, and zilch about this nauseating crime, it might lead one to the conclusion that commenters are preoccupied with the system's supposed draconian approach to triviality, yet oblivous to a story impeaching the view that the behavior that leads to sex offender convictions is in fact as trivial as it is routinely portrayed here.

The defense mindset seems to be bursting with outrage EXCEPT where the crime actually IS an outrage, in which event it is full of snoring.

Sorry you can't see that.

Posted by: Bill Otis | Jul 30, 2010 6:41:12 PM

res: "I couldn't figure that out either. I suspect it was part of a plea deal, but with a guaranteed conviction and a nauseating series of disgusting crimes, I don't see why a deal would even be necessary"

me: just a guess, but almost all of the horrific conduct this icky perv is being punished for took place in cambodia and china - the government may have wanted to avoid a constutional or jurisdictional challenge. as much as i dislike icky pervs, it seems questionable that the united states has jurisdiction to punish anything that this icky perv besides traveling overseas to abuse children and the distribution . while the other crimes are horrific, they did not take place in the united states.

bill: "You guys have got it all wrong. As we have so often been told in this space, it's all just public urination, or teenagers sending nudie pictures to one another"

me: not even apples and oranges - more like apples and zippers.

bill: "I notice virtually the entire defense contingent here, which has spent months pooh-poohing obscenity crimes, and lauding humane district judges for downward departures, seems to be rather quiet about this case."

me: the fact that the max this icky perv could get was 30 years is substantially unreasonable. of course, i think that the original 17.5 year prison sentence and castration would have been reasonable. happy now? :P

bill: "P.S. This illustrates why Kennedy v. Louisiana was wrongly decided"

me: killing icky pervs is barbaric overkill - i'm not sure why you think its okay to kill an icky perv, but find that castrating them is beyond the pale. it is my belief that this defendant after a lifetime of sexually victimizing women and girls should be castrated. the opinion noted that he gave a veneral disease he caught from a prostitute to his wife, so his wife must be much more foregiving than i am :P

but, just think - if louisiana waited to get a defendant like this, kennedy might have gone the other way - but no supreme court justice would be likely to allow giving this icky perv what he really deserves ;)

ginny :)

Posted by: virginia | Jul 30, 2010 8:30:40 PM

I cannot understand what the Eleventh Circuit majority thinks is wrong with the "parsimony" terminology. It perfectly captures the concept that the statute imposes as the substantive standard for the district court's decision. "Parsimony" does not mean "leniency"; it means just enough, but no more. Nor does "sufficient" mean "harsh" or "severe." Thus, the parsimony principle, as reflected in the "overarching command" (Kimbrough) of 3553(a) is not evenhanded, as between leniency and severity, and was not intended to be. The Third Circuit has summarized that mandate as require a "minimally sufficient" sentence. Clearly not an insufficient sentence, nor does the term "parsimony" imply any such thing. But the statute does not say: "Punitive, but no harsher than tolerable." Nor does it say, "neither excessive nor insufficient," as the Eleventh Circuit would have it. My understanding of the statute's carefully chosen words reveals a preference for the resolution of judicial doubt in favor of less severity of punishment.

Posted by: Peter G | Jul 30, 2010 9:26:02 PM

i'm with you virginia!

"me: just a guess, but almost all of the horrific conduct this icky perv is being punished for took place in cambodia and china - the government may have wanted to avoid a constutional or jurisdictional challenge. as much as i dislike icky pervs, it seems questionable that the united states has jurisdiction to punish anything that this icky perv besides traveling overseas to abuse children and the distribution . while the other crimes are horrific, they did not take place in the united states."

IF all they got him on was actions that took place somewhere they were legal....even if we disapprove...SO WHAT! it's not our job or LEGAL RIGHT to punish actions that take place OUTSIDE our jurisdiction.

As for this bit of STUPIDITY!

"30-year guidelines range and imposed a sentence of only 17½ years. Our duty to set aside unreasonable sentences requires that we set aside this one."

Sorry i see nothing "ONLY" in a 17 1/2 year sentence! especialy when the max was as they say "ONLY 30! that's 2/3's of it! hardly a minimum sentence ESPECIALY when you add in the kickers that will apply if he's ever released. You know...that ILLEGAL sex offender registry and considering where it's at now! in 17 1/2 YEARS it will undoubetly be either instant DEATH when released or immediate removal to some kind of sex offender PENAL COLONLY! again hardly a CHICKEN SHIT punishment as these idiots on the appeals court say!

All they have done is prove their STUPIDITY!

Posted by: rodsmith | Jul 31, 2010 2:36:55 AM

Virginia-- The single count he pled to, 2251(c), was enacted specifically to make it possible to convict people who travel outside the US for the purpose of producing c.p., so there's no issue about bending the statute to convict him (and if there was some possible constitutional issue, it would still exist in the case anyway). Given that he had over 1200 photos that included both him and children, he could have least been indicted for a few more counts of that offense. Moreover, given the conduct described in trying to trade photos for memberships in websites, I'm surprised he wasn't indicted with a couple distribution/receipt counts as well. I'm assuming it would be double jeopardy to charge him with possession/transport for the same conduct underlying the 2251(c) count, but the attempted/actual trading once he was back in the US would be separate conduct.

Posted by: Jay | Jul 31, 2010 6:49:33 PM

Well Bill Otis, we just all like seeing you get so indignant about lack of participation that we had to remain quiet to see what you would do. Successful experiment guys, I won the bet.

OR possibly some had not read it yet, had lives, didn't feel the need to comment, are postwhores already, whatever. etc. whocares. Don't worry, we all knew where you have been coming from long before now.

Posted by: tbucket | Aug 1, 2010 1:14:11 AM

Answer to question about why the prosecutor offered a plea that capped the sentence at less than life : the prosecutor thought a decades-long sentence would be sufficient punishment.

Posted by: sunscreen | Aug 1, 2010 3:45:40 PM

Did you know that treatment for former offenders has been proven effective and that most sex offenders never commit another crime? Did you also know that making it more difficult for former offender to reintegrate into society increases recidivism?

Would you like more *FACTS* ? If so, look at this website and please sign our petition:

CanadiansForAJustSociety [dot] webs [dot] com

Posted by: Steven Yoon | Aug 17, 2010 12:45:21 PM

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