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December 20, 2011

Split Sixth Circuit panel spars over federal child porn sentencing as it affirms within-guideline sentence

Anyone who follows federal child porn sentencing decisions and trends will want to be sure to check out a split opinion handed down today by the Sixth Circuit in US v. Overmyer, No. 10-1716 (6th Cir. Dec. 20, 2011) (available here). The majority opinion authored by Judge Sutton includes these passages, which help explain the issue and the panel's holding:

Leonard Overmyer pled guilty to transporting child pornography and received an 87-month prison sentence.  The district court addressed all of Overmyer’s arguments for a lower sentence and reasonably imposed a bottom-of-the-guidelines sentence.  We affirm....

Overmyer moved for a downward variance, requesting a sentence near the statutory minimum on three grounds: he sought therapy on his own initiative; he expressed remorse for his actions; and he suffered from depression over the impact of the crime on his family.  The court imposed an 87-month sentence, explaining that it agreed with the severity of the child-pornography sentencing guidelines — “that the guidelines themselves measure the appropriate harms” — and that it would not exercise its authority to vary downward based on a policy disagreement with them....

The parties do not dispute the applicable guidelines range, and the district court adequately addressed each of Overmyer’s arguments for a variance.  The judge “recognize[d] that . . . [Overmyer’s] nuclear family has been shattered. . . . [and took] into account the fact that [Overmyer] now . . . understands the victimization of young children who are depicted in these images.” R.39 at 13.  He also “fully underst[oo]d” that “Mr. Overmyer has lost his livelihood and his nuclear family,” but said that in his “judgment that merits a sentence at the lowest end of the advisory guideline range,” R.39 at 16, not a sentence below the range.  The court addressed each of Overmyer’s arguments for a below-guidelines sentence, leaving nothing procedurally awry about the sentence....

Overmyer next raises a substantive-reasonableness objection — that his sentence is too long.  A within-guidelines sentences is presumptively reasonable, Vonner, 516 F.3d at 389, and Overmyer points to nothing to displace the presumption.  He claims that a shorter sentence is in order because he sought counseling on his own after the arrest and because he was unusually despondent over the collateral effects of his conduct.  Although these considerations might support a lower sentence, they do not compel one, and that is all we have license to consider....

In the aftermath of United States v. Booker, 543 U.S. 220 (2005), Rita v. United States, 551 U.S. 338 (2007), and Kimbrough v. United States, 552 U.S. 85 (2007), it is trial judges, not appellate judges, who have considerable discretion in applying the § 3553(a) factors to an individual.  Whether in a given case a district court agrees with the guidelines recommendation, varies downward from the guidelines range or varies upward from the range, we defer to their sentencing decisions unless those decisions are unreasonable.  It follows that, while our colleague is correct that appellate judges may disagree with the sentencing judge about the appropriateness of a given sentence in a given case, mere disagreement is not by itself sufficient to warrant reversal.  Something more — a disagreement that establishes the unreasonableness of the sentence — must be present....

Overmyer received and possessed at least 90 images (89 more than necessary for the imposition of the five-year minimum), including images that are more sadistic than the “ordinary” child pornography sufficient to trigger the mandatory minimum.  He persisted in his criminal conduct even after it cost him his job, and he lied to investigators when they came looking for evidence of the crimes.  Nor does anything in the record show that Overmyer is fully rehabilitated; it shows only that he sought treatment and made commendable progress in addressing his addiction.  Whatever we might have done in sentencing Overmyer, it is difficult to say that the district court acted unreasonably in sentencing him to more than the statutory minimum.

The dissenting opinion authored by Judge Merritt includes these passages, which help explain his concerns with the panel's holding: 

The problem in this pornography case is the gross disparity, inequality, and unfairness that exists in sentencing generally, but even more so in these child pornography viewer cases. It illustrates the continued sad dependence of federal judges on a harsh sentencing grid created by a distant bureaucracy....

Here the defendant also asserts that “a sentence in the 60 month range would be sufficient but not greater than necessary to punish him for his offense behavior.” (Appellant brief, p. 9.)  My colleagues do not even discuss, much less take seriously, the parsimony provision....

As an appellate judge required by law to review and consider the sentence in this case, I assume I am permitted to disagree respectfully with the sentencing judge about the fairness of the guidelines policy and its application in this case.  Like the judges in [the Third Circuit case of US v.] Grober, I would limit the sentence in such cases to the mandatory minimum of 5 years, as requested by defendant....  The Guidelines in this case, as in many cases, are too harsh, here “unconscionably” harsh, as the Third Circuit says....  In the end it is still supposed to be the Article III sentencing judges at the trial and appellate levels who are responsible for the sentence imposed, even though the grid system has given the prosecutor, a party to the case, a dominant role, as the Third Circuit district and appellate judges discussed in Grober.

My colleagues’ response to this line of argument is that it is irrelevant and unworthy of serious consideration: They say clearly that if a district court and the grid system are together on a sentence within the grid, a reviewing judge has no business interfering. Presumably, that is the reason my colleagues refuse to discuss the harshness of the sentence, the addictive and nonviolent nature of the crime, the parsimony provision of the Sentencing Act or the validity of the grid policy that the district judge discusses and accepts.  No effort is made to rebut the views expressed in the Grober case or in the many opinions and articles discussed there which strongly disagree with the guideline policy, and no effort is made to discuss the elemental fact that most of the guidelines enhancements are inherent in the crime itself for which Congress established a mandatory minimum of five years.  The only argument that persuades my colleagues is that the district court and the grid are in agreement.  When that is the case, the policy and the sentence must be right and no further analysis or commentary is needed.  The grid becomes a biblical command for the reviewing judges.  I do not agree.

In part because I played a role as an expert witness in the Grober case (which itself gets a mention in the dissent), I am disinclined to weigh in concerning the child porn sentencing substance of this Sixth Circuit panel dispute.  I am, however, inclined to assert that the true essence of the dispute in Overmyer is ultimately more about the nature and direction of substantive reasonableness review than about federal child porn sentencing.

December 20, 2011 at 04:52 PM | Permalink

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Comments

The harshness of CP sentencing -- and I agree, it's harsh -- is by now so well known that perhaps, I might venture, those inclined toward this sort of thing would STOP DOING IT.

At some point, the defendant has to take at least a smidgen of responsibility for behavior he knows, or certainly should know, can get a severe sentence.

Posted by: Bill Otis | Dec 20, 2011 5:56:40 PM

I agree with Bill. Pleading guilty isn't taking even a smidgen of responsibility.

Posted by: rfj | Dec 20, 2011 7:01:35 PM

In response to the two previous dimwit opinions posted, stuff it.

Posted by: Brooklyn | Dec 20, 2011 7:43:18 PM

rfj --

"Pleading guilty isn't taking even a smidgen of responsibility."

Correct, in this case anyway. Pleading guilty when the government has you dead to rights is simply indicating that you can recognize reality, not accepting responsibility.

But of course you evade the main point, which, as you well know, is that when the severity of the sentences is as well known as it is in this area, the way to avoid them is to STOP CONSUMING CP.

Any objection to that?

Posted by: Bill Otis | Dec 20, 2011 8:48:03 PM

I think we can all agree that the best way to avoid a long prison sentence is to avoid violating any laws. Stipulated. Now can we go back to debating whether certain sentences are appropriate for various crimes? Bill, if you agree that CP penalties are harsh, you would be an excellent advocate for reform.

Posted by: Thinkaboutit | Dec 20, 2011 10:16:40 PM

I can barely express the dread that I am faced with at the prospect of seeing Mr. Otis' righteous indignation here day after day. As much as I'd like to read what some thoughtful readers have to say, I think the time has come that I'm just going to have to stop looking at the comments section altogether. And maybe just shop around for another blog he hasn't infested yet.

Posted by: Matthew | Dec 20, 2011 11:03:21 PM

I wrote a long comment earlier which does not appear to have posted, but anyway here is the summary of the actual legal issues involved.

I believe that Bill is ignoring the factor that possession of child pornography may be a crime which is impossible to deter because the icky pervs who look at it tend to suffer from sexual disorders - primarily pedophilia and/or sexual sadism. Thus, increasing sentences are not likely to increase deterrence for a crime based upon mental abnormalities. It is also important to note that as disgusting as looking at child pornography may be, its actually a less harmful substitute for actual rape of children. Thus, in setting icky perv sentences, one must look at the sentences for raping children. The primary question for deterrence then will be to make sure that the penalty for child pron possession is substantially less than that of the underlying crime depicted in the photos.

On its own, a 7 plus year sentence for looking at prohibited images seems extremely harsh - but as the court discussed, the images this icky perv possessed were noted to be extra sadistic including bondage and torture in addition to children being raped. When compared with the expected sentence for child rape including bondage and torture, which is likely to be LWOP or at least measured in decades, 7 plus years actually seems quite reasonable.

The dissenter's point that the 5 year mandatory minimum sentence is also reasonable is probably also true - as would also be true that a 10 year sentence would be reasonable. Thus, the majority position appears to be better because the district court is best in the position to judge a specific case. In this case, the extra element of sadism present in images showing children in bondage and being sexually tortured justifies a sentence beyond that of the ordinary icky perv. If 5 years is reasonable for an ordinary icky perv, an extra two years for being extra icky is reasonable. In fact, I probably would have given a harsher penalty to this icky perv had I been th edistrict court judge - the claimed reasons for leniancy, especially that his wife left him and he lost access to his children after he was shown to be a disgusting icky perv who is into children being tortured and raped is not exactly touching. But realistically, I can't say that 5 years or 7 years, or 10 or 15 is unreasonable for this case given a choice of several reasonable sentences, hence it makes perfect sense to let the district court make the determination.

Posted by: virginia | Dec 21, 2011 7:06:06 AM

I have represented a number of federal child pornography offenders. Sutton identifies "images that are more sadistic than the “ordinary” child pornography." The problem is that "sadistic" is a term of art for purposes of sentencing federal court. For most people when they hear term sadistic they think whips and chains. However, the pictures at issue may not have involved whips and chains. The public should know that many federal circuit courts (maybe all) have held sexual penetration of a child by an adult male likely causes pain and, therefore, qualifies as sadistic or violent within the meaning of USSG 2G2.1(b)(4). The point is that the terms sadistic, violent and masochistic are great for sound bites and justifying long sentences but their use may not accurately portray to the general public what actually was viewed or possessed in a particular case. To me it is intellectual dishonesty to use such terms if all one has are pictures showing penetration. No of what I have said in any way lessens the culpability of the offender. Let's call a spade a spade and a shovel a shovel.

Posted by: ? | Dec 21, 2011 9:05:43 AM

?, the majority opinion states that some of the images involved "pictures of children in pain and bondage" - that description appears to be sufficient to convey that these images are within the regular defintion of "sadistic" images - one reason why I believe that the court was proper to reject the claim that the statutory mandatory minimum was sufficient.

Posted by: virginia | Dec 21, 2011 9:12:09 AM

Matthew --

"I can barely express the dread that I am faced with at the prospect of seeing Mr. Otis' righteous indignation here day after day."

My "indignation" about the exploitation of childer will continue. If you or others accept this sort of thing, that's your choice.

And if reading comments on a blog causes you to feel "dread," then it's obvious you have never faced any real danger in your life. Some of us have not been so fortunate.

Bye bye!

Posted by: Bill Otis | Dec 21, 2011 9:54:29 AM

Thinkaboutit --

The reason I point to the underlying behavior as a problem, and not just the law's reaction to it, is that it has become routine ONLY to blame the latter, while the former gets shoved into the corner.

The severity of CP sentences has been the subject of at least two dozen entries here. The subject has been beaten to death. In those circumstances, it's fair to point out that it's time for potential consumers of this stuff to wake up and do something else. When you keep going back to a well you know is full of fetid water, at some point the problem becomes less the quality of the water than the quality of the drinker's decision-making.

This is a crime that is stupendously easy to avoid. We're not talking about Jean Valjean here. There are about ten zillion sources of legal porn featuring adults. If a person is into porn, there's no shortage.

Posted by: Bill Otis | Dec 21, 2011 10:12:32 AM

virginia --

It has been my experience that almost any behavior is deterrable if the incentives are strong enough. For example, even heroin addiction can be broken, but only after it becomes graphically clear to the addict that (1) he's destroying his life, and (2) very soon after he destroys it, it won't be there at all; he'll be in the mortuary.

With that exception, once again I find no flaw in your reasoning.

Posted by: Bill Otis | Dec 21, 2011 10:25:50 AM

?

You really don't believe that adult penitration of a minor is sadistic?

The public should know that many federal circuit courts (maybe all) have held sexual penetration of a child by an adult male likely causes pain and, therefore, qualifies as sadistic or violent within the meaning of USSG 2G2.1(b)(4).

Posted by: lawdevil | Dec 21, 2011 12:18:50 PM

"You really don't believe that adult penitration of a minor is sadistic?"

The original act yes, the viewing of pictures, no.

Posted by: ! | Dec 21, 2011 12:46:57 PM

"This is a crime that is stupendously easy to avoid. We're not talking about Jean Valjean here. There are about ten zillion sources of legal porn featuring adults. If a person is into porn, there's no shortage."

Bill,

I wouldn't say it is "stupendously easy" to avoid. It is perhaps as easy as it is to avoid heroin addiction, maybe even more so. It is as easy to avoid as it would be, perhaps, for the average healthy male to avoid sexual stimulation throughout his lifetime. That's not to say it can't or shouldn't be avoided, but I think matters of mental illness and sexuality are far more complicated than your phrasing suggests.

AO

Posted by: AnonymousOne | Dec 21, 2011 2:11:47 PM

AO --

With all respect, I do not view CP offenses as a product of, and thus excusable by, mental illness. It may well be that thinking a six year-old is "sexy" requires a person to be out of his mind, but, in my view, the criminal law is well within bounds in punishing the pursuit and commercial exploitation of that sort of thing. The whole point of criminal law is to require people to abstain from things that tempt them.

I don't expect people not to be tempted by one thing and another. I expect them to RESIST temptation, particularly where the item desired has come about from cruelty towards, and exploitation of, someone too young and weak to resist.

Posted by: Bill Otis | Dec 21, 2011 2:27:38 PM

Bill,

My issue was with your characterization of the choice as "stupendously easy," not whether criminal law should require people to abstain from things that tempt them. For some (not all) who have developed (for whatever reason) a sexual attraction to children, resisting the temptation to even view images is akin to asking a healthy male to avoide all sexual contact as well as any depictions of it. Far from easy.

AO

Posted by: AnonymousOne | Dec 21, 2011 3:45:33 PM

bill: "I do not view CP offenses as a product of, and thus excusable by, mental illness"

me: saying that CP offenses are often products of the mental illness - or more often personality disorders - is a different matter than stating that the offenders are legally insane. It is likely that the vast majority of CP offenders have some sort of diagnosable mental condition, especially since pedophilia is listed in the DSM and has recognized critiera for diagnosis. It is likely also that many offenders have other mental illnesses or personality disorders. many CP defendants have been sexually abused themselves. Admitting that most CP defendants have some sort of recognized mental condition which led them to commit the crime is not the same as saying they are legally insane. In fact, an NGRI finding in such a case would likely be exceedingly rare simply because if a person who is sexually attracted to children and has access to children - but is merely looking at pictures and not sexually abusing or raping actual children, that strongly suggests that they did have control over their sexual desires. The fact that viewing CP is a less harmful alternative to actually abusing or raping children by itself pretty much eliminates any chance of an NGRI plea because it suggests that the defendants had sufficient control of themselves to avoid actually raping a child.

It is an absolute mistake to assume that merely because a crime does not meet the legal definition of insanity under the NGRI standards that it is not a product of a mental disease or defect. It is really insulting to people with mental illnesses to assume that just because someone has a mental disease or defect they will run around being criminals having no control - that is the stigma which mental health advocates have been fighting for years.

Of course that means that I need to look at this statement:

AO: "For some (not all) who have developed (for whatever reason) a sexual attraction to children, resisting the temptation to even view images is akin to asking a healthy male to avoide all sexual contact as well as any depictions of it."

me: I'm not going to pretend to understand how male sexuality works, but are you saying that men are so lacking in imaginations that they need visual depictions of actual sex in order to come up with a fantasy? Actually, that would explain a lot. I mean, pure imagination and masturabation is a perfectly legal substitute for child pron. As icky as it might be, there is nothing illegal about an icky perv laying in bed playing with his no doubt tiny penis while thinking about sex with children.

Of course, one should still look at other factors - besides a total lack of imagination - which might led the icky perv to be especially vulerable to acting out his fantasies which require treatment within the correctional setting since most icky perv CP defendants are going to be eventually released back into society.

Hence, ultimatately, Bill's mistake seems to be equating acknowledging the role that mental illness plays in icky perv crimes with excusing them - essentially an NGRI or nothing approach.

Posted by: virginia | Dec 22, 2011 7:49:11 AM

"I'm not going to pretend to understand how male sexuality works, but are you saying that men are so lacking in imaginations that they need visual depictions of actual sex in order to come up with a fantasy?"

You didn't know this?

Posted by: Res ipsa | Dec 22, 2011 9:19:08 AM

res ipsa: "You didn't know this?"

me: why would I?

Posted by: virginia | Dec 22, 2011 6:00:41 PM

bill: "It has been my experience that almost any behavior is deterrable if the incentives are strong enough"

me: Yes, I'm sure that there is a penalty strong enough to deter people viewing child porn, but everytime I start talking about castrating sex offenders on here I get called barbaric or "a hate filled lunatic" or "a professional victim." But obviously there are limits to how severe the penalty can be - in this case not only the constitutional limits which presumably keep us from snipping off the genitalia of sex offenders but practical limits in that if the penalty for child pron is so high, it will be worse than the penalties for actual contact offenses. LWOP may well deter people from looking at child porn - but its also the same penalty one would get for the most violent child rape. Hence, LWOP would be a contrary sentence.

Now, naturally I have a solution - and it is what I am currently calling Erika's Law until I come up with the name of an available cute blonde victim (most of the good victims have been taken by other antisex offender legislation). The solution here is voluntary castration for sex offenders - that way, because it is voluntary, its not unconstitutional but you still can have public service announcements which place the idea of potential castration for child porn offenses in the public mind - of course, the purely voluntary castration may well not be totally effective because few, if any, sex offenders are going to be voluntarily maimed. But that is why Erika's Law would make involuntary castration available for people who commit violent rapes. Really, the idea is to get castration in the public mind. Since you claim it works for death which is even crueler and more unusal, why wouldn't even an unlikely threat of castration would to deter sex crimes?

Oh Bill, I might as well just tell you that my name is Erika since FRT figured it out the last time I mentioned my proposed Erika's Law.

Erika :)

Posted by: virginia | Dec 23, 2011 9:27:56 AM

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