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February 7, 2011

Sixth Circuit seeks sentencing justice(?) through distinction between CP receipt and possession

The Sixth Circuit has an interesting and potentially important decision concerning federal child pornography offenses today in US v. Szymanski, No. 09-3524 (6th Cir. Feb. 7, 2011) (available here).  Here is how the opinion starts:

Defendant Daniel Szymanski pled guilty to receiving child pornography and was sentenced to five years’ imprisonment, the statutory minimum sentence applicable to that charge. On appeal, Szymanski raises a variety of constitutional arguments, principally contending that the mandatory minimum under which he was sentenced is unconstitutional in light of United States v. Booker, and because another offense — possession of child pornography, with which he was not charged and which, he alleges, is substantially similar if not identical to the receipt charge — does not carry a mandatory minimum sentence, a state of affairs which he suggests violates separation of powers.  However, in this somewhat unusual case, we do not reach the merits of the claims Szymanski brings on appeal. Instead, we raise sua sponte the issue of the validity of Szymanski’s guilty plea, in light of two features of this case.  First, the Supreme Court, over sixteen years ago, construed the crime at issue to contain an element not necessarily required by its statutory text: a defendant charged with receipt of child pornography must have knowledge, not only as to the act of receipt itself, but also as to the fact that the material he is receiving features minors engaged in explicit sexual conduct.  Second, this interpretation of the statute as containing a demanding scienter requirement was never explained to the defendant during the rather brief colloquy preceding the district court’s acceptance of his guilty plea. Indeed, our examination of the record leaves us with the strong impression that the defendant, his counsel, as well as government counsel at the arraignment did not have an adequate understanding of the nature of the charge at issue.  Moreover, there is evidence that the defendant specifically denies having any knowledge at all with respect to the content of the material he was receiving at the time of receipt, the very element the Supreme Court held necessary for conviction under the receipt charge.  Accordingly, we VACATE the defendant’s conviction and sentence, and REMAND the case for further proceeding.

February 7, 2011 at 11:13 AM | Permalink


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MY GOD! Judges with a BRAIN! would would have figured in this country.

Posted by: rodsmith | Feb 7, 2011 1:55:58 PM

Thank GOD! Finally we have something real to hope for. I am so glad to see these courts and a growing number of people stepping up to try and make things right. Making Law, make sense again! I think a lot of these court cases, when actually read clearly spell out whose was an accident, who needs mental therapy, and those that should go away and never come back. I think more than anything this is spreading to or members of families that have power...hopefully this will bring cases and sentences resulting in correctly punishing people and making our country a truly safer place on the internet and in real life. Can't wait to see if the Sentencing Commission proposes and changes the receipt vs. possession this year and if Congress shots it down as they have in the past...

Posted by: Fixnrlaws | Feb 7, 2011 2:18:46 PM

Awesome that the judge has some common sense. Too bad that there are already hundreds of guy who had EXACTLY the same situation who signed away any right to appeal.

Posted by: Jake | Feb 7, 2011 8:39:26 PM

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