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April 12, 2011

Ninth Circuit affirms lifetime supervised release term for child porn possessor

The Ninth Circuit has an interesting and notable opinion in a child porn sentencing case today in US v. Apodaca, No. 09-50372 (9th Cir. April 12, 2011) (available here). Here is how the majority opinion starts:

Daniel Apodaca pleaded guilty to one count of possession of child pornography in violation of 18 U.S.C. §§ 2252A(a)(5)(B), (b)(2). The district court deviated downward from the United States Sentencing Guidelines’ recommendation and sentenced Apodaca to two years imprisonment and lifetime supervised release. Apodaca appeals the supervised release portion of his sentence, arguing that its length was unreasonable and that one of the supervised release conditions violates his constitutional rights. We affirm.

A lengthy concurrence by Judge Fletcher makes this ruling especially blogworthy, and it begins this way:

Because the district court committed no procedural error and sentenced Apodaca to the lifetime term of supervised release recommended by the Guidelines, our precedents require us to affirm Apodaca’s sentence. See, e.g., United States v. Carty, 520 F.3d 984, 993-94 (9th Cir. 2008) (en banc). I therefore concur in the judgment and almost all of the opinion.

I write separately to state my view that the applicable statute, 18 U.S.C. § 3583(k), and Guidelines policy statement, U.S.S.G. § 5D1.2(b)(2), grossly overestimate the risk that defendants like Apodaca, who are convicted only of possessing child pornography downloaded from the Internet, and who have no prior contact child sex abuse convictions, will commit contact sex offenses against children.  Compare, e.g., United States v. Williams, No. 10-30084, 2011 WL 768082, at *1 (9th Cir. March 7, 2011) (prior child sexual assault convictions).  The routine imposition of lifetime terms of supervised release on Internet-only child pornography offenders departs from Congress’s purpose in enacting § 3583(k) and ignores the best available empirical evidence.  This practice results in onerous sentences imposed without individualized attention to the “history and characteristics of the defendant,” 18 U.S.C. § 3553(a)(1), or to the “need for the sentence imposed to protect the public from further crimes of the defendant.” Id. § 3553(a)(2)(C).

Though I find it refreshing to see a circuit judge discuss and explain his view of the application of the 3553(a) factors in a particular case, I find it depressing to see that same judge believe he is obliged to affirm a sentence he views as "depart[ing] from Congress’s purpose in enacting § 3583(k) and ignor[ing] the best available empirical evidence."

April 12, 2011 at 05:52 PM | Permalink

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Comments

Just another example of why the government is broke.

Posted by: Jake | Apr 12, 2011 6:47:59 PM

I find the claim that without procedural error that a within guideline sentence must be upheld somewhat troubling also.

Does the 9th circuit actually believe that the guidelines so perfectly embody substantive review that no case of a within guideline sentence can possibly be an unreasonable sentencing outcome to the point where they won't even go through the motions? That would seem to depart from Booker's progeny just as much as assuming an outside of guideline sentence is unreasonable (although I'm not aware of any circuit still trying that claim as SCOTUS has shot it down so many times now).

Posted by: Soronel Haetir | Apr 12, 2011 7:07:54 PM

Jake --

Do you honestly think the government is broke because of the costs of supervised release?

Posted by: Bill Otis | Apr 12, 2011 8:38:11 PM

The government is broke because it wastes money. This is an example of wasted money. So this is an example of why the government is broke.

Posted by: Anonymous | Apr 12, 2011 9:37:28 PM

Anonymous --

Wake up. Blaming "waste, fraud and abuse" is the oldest and lamest line in town.

Of course all those things exist. But, overwhelmingly, the reason the government is going broke is entitlement spending. If you asked 100 people at random what they thought is the cause of our looming trip to bankruptcy, not one would say "supervised release."

The Left doesn't want imprisonment -- OR the DP, OR supervised release or anything else. The reason has zip to do with expense; that's just the trendy offering du jour. The actual reason is that the Left doesn't believe in punishment at all -- except if you're Don Rumsfeld, Dick Cheney, George Bush or some other conservative white male. THEN, but only then, judgmentalism comes rapidly back into style.

Posted by: Bill Otis | Apr 12, 2011 10:26:17 PM

Bill, take it easy. Have a drink. Have a toke. Calm down. The blog is getting to you. I know you take alot of crap on this blog, but, inspite of everything, we do like you.

My best regards,

your anonymous Democratic buddy.

Posted by: anon14 | Apr 12, 2011 10:49:40 PM

Bill:

The reason the government is broke is "YOUR" entitlement, i.e., double dipping as a federal employee and as a teacher of the "Law", with a pension.

Your god is Congress, I won't capitalize this god.

There are none so blind as those (YOU) who will not see. You see, you swallowed the government platitudes (lies, for a real definition, see Mencken).

None of your students, (unless they become government apologists as yourself), will ever see the return on their college/law school investment. The government becomes more powerful, and we are like Rome and will eventually ask, what happened?

I am more conservative than you. I was a scientist/engineer who sees how so-called conservatives (RINO's) are becoming worse than the democrats by deceiving themselves.

"Show me a country with many laws, and I will show you a corrupt country."

"Beware of those, in whom, the desire to punish is strong."

You find these authors you law professor.

Posted by: albeed | Apr 12, 2011 11:02:58 PM

anonymous Democratic buddy --

Well, gosh, thanks. But I'll have to decline your suggestion that I have a toke, since smoking dope is (1) illegal and (2) unhealthy. Other than that, however, it's a super idea.

As for the notion that calm should prevail, you might more profitably direct that to the commenter who follows you.

Posted by: Bill Otis | Apr 13, 2011 12:28:56 AM

Bill Otis--

Entitlements actually do something. Whether the government ought to be in that business is a reasonable debate, but nobody can dispute that health care for senior citizens serves a purpose.

The utility of lifetime supervision for a child porn downloader is not so clear. Even though it costs a lot less than medicare, it is far more difficult to articulate how anyone is better off with lifetime supervision, as opposed to (perhaps) five or ten years’ supervision, of this offender.

Of course, it’s also worth noting that two of the largest entitlements, Social Security and Medicare, are funded by dedicated taxes. There is no dedicated tax for the Justice Department: it has to compete for general revenues with other, perhaps worthier priorities.

Finally, “it really doesn’t cost that much” is the argument that liberals use to justify their favored programs. That may be true of any particular case in isolation, but over time it’s real money.

Posted by: Marc Shepherd | Apr 13, 2011 10:52:36 AM

Marc --

"Entitlements actually do something."

That is correct. In terms of the budget, what they principally do is drive us toward bankruptcy, since the payouts vastly exceed the intake. This is because, for decades, the payouts have been raised beyond all fiscal sense by over-promising politicians who knew the bill would come due only after they had left office.

"The utility of lifetime supervision for a child porn downloader is not so clear. Even though it costs a lot less than medicare..."

That's a mite of an understatement, wouldn't you think? Supervised release for EVERYONE WHO HAS IT costs, what, one ten-millionth of Medicare?

"Of course, it’s also worth noting that two of the largest entitlements, Social Security and Medicare, are funded by dedicated taxes. There is no dedicated tax for the Justice Department: it has to compete for general revenues with other, perhaps worthier priorities."

The problem is that SS and Medicare aren't so much funded by dedicated taxes as vastly UNDERfunded.

"Finally, 'it really doesn’t cost that much' is the argument that liberals use to justify their favored programs. That may be true of any particular case in isolation, but over time it’s real money."

I'm for saving money wherever we safely can. The fact of the matter is that we are in the hole for the ususal reason people wind up in the hole, to wit, that they spend too much. The overwhelming portion of federal spending is from "mandatory" things, those being the entitlements and interest on the debt.

Discretionary spending accounts for 12% of the budget. The idea that we can focus on that -- indeed a tiny sliver of that, as happens all the time on this blog -- and solve the debt crisis is crazy.

The time has come to stop nibbling around the edges and get to the heart of the matter. We can only make the critically needed huge savings where the huge savings are to be had, and that is in SS, Medicare and Medicaid. The numbers are what they are, and they don't change because liberals want to cut back on criminal punishment.


Posted by: Bill Otis | Apr 13, 2011 11:21:38 AM

You forgot one. SS, Medicare and Medicaid... and defense.

Posted by: Peter | Apr 13, 2011 11:28:44 AM

You also forgot that there's an alternative to "huge savings" -- increasing revenue.

Posted by: Jonathan Edelstein | Apr 13, 2011 2:25:07 PM

I would cut the Pentagons budget by a flat 20%...They aren't what they are cracked up to be.. Didn't stop 911, let the planes do their deed....If they can't operate like god, then they don't get gods budget either..

Posted by: Josh | Apr 13, 2011 2:42:00 PM

actually bill i think this is just another set of nazi judges who need to be removed from life itself. i mean come on. He's so dangerous they want to give him 2 years in jail wich is nothing. then come back and give him LIFETIME parole... no such thing as probation. The average probation conditions an individual get's hit with now are 1000% more restrictive than parole ever was in the old days. so sorry that died decades ago.

as for this!

"The problem is that SS and Medicare aren't so much funded by dedicated taxes as vastly UNDERfunded."

Not sure about medicare but social security was not underfunder....up till 30 years ago it had built up more than a TRILLION dollar surpuls which the govt have been SWIPING for decades to prop up the rest of the budget!

UNFORTUNATELY peter is now as broke as paul....no where else to get it!

Posted by: rodsmith | Apr 13, 2011 5:05:44 PM

You're a bit unkind to Judge Fletcher. In the Ninth Circuit a three judge panel cannot overrule a previous panel. Judge Fletcher concurred in the judgment because he had no choice.

Posted by: Jeff | Apr 13, 2011 9:00:29 PM

Well gosh Bill, I am sorry that I irritated you as much as a mosquito.

You did not answer the two questions I asked you at 11:02.

Are they meaningless? Perhaps? Perhaps they explain the trouble we're in.

I won't get into you about overcriminalization (Barry Bonds convicted of (Obtruction of Justice), wtf? Every LE officer I ever met believes they are above the ordinary citizen. Do you?

They are a sign of the collective trampling on individual rights.

Do you prefer collective rights, or individual rights?

Posted by: albeed | Apr 13, 2011 11:51:39 PM

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