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August 4, 2010

Second Circuit amends (slightly) its important Dorvee child porn sentencing decision

A helpful reader alerted me to the news that the Second Circuit handed down today this amended version of its important Dovree ruling from a few months ago that reversed as too long a below-guideline sentence for a child porn offender. The same reader sent me this synopsis of what seem to be the significant aspects of the amended opinion:

Apparently, there were two general areas of changes.

First, perhaps in response to the Government's rehearing petition (which is still pending) that attacked the original decision's use of the Second Circuit's sometimes-invoked relaxed plain-error standard when sentencing is involved, the amended decision omits any reference to the relaxed standard, and simply concludes that the error in question was "plain." Relatedly, whereas the original decision stated that another error was reviewed under the normal plain-error standard, the amended decision concludes that that error in fact was preserved.

Second, the amended opinion (at 17) quotes extensively from former ENDY US Attorney Alan Vinegrad's attack on the [PROTECT Act in an issue of the Federal Sentencing Reporter], and (at 19) cites an unpublished comment by a federal defender [the Stabenow paper that has been referenced in many district court opinions when deciding to vary from the child porn guidelined]. That comment is filled with wonderful language for persons wanting to attack sentences under the kiddie-porn-possession Guidelines.

Some related prior federal child porn prosecution and sentencing posts:

August 4, 2010 at 06:30 PM | Permalink

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Comments

Just a brief note. The sentence imposed on Dorvee wasn't a below-guidelines sentence. It was the statutory maximum, which was below the bottom of the guidelines range; the statutory maximum therefore became the guidelines sentence. The procedural error in the case was that the district court erroneously characterized the statutory maximum as a "below-guidelines" sentence.

Posted by: Paul J. Angioletti | Aug 4, 2010 10:47:50 PM

now me i'm curious just how many damn times does the SAME court get to change a sentence? this can't possible be legal.

Posted by: rodsmith | Aug 7, 2010 7:44:10 PM

Never frown ,when you are sad ,because you never know who is falling in love with your smile

Posted by: thomas sabo wholesalers | Jun 23, 2011 6:02:02 AM

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