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June 27, 2013

Sixth Circuit panel, again, finds substantively unreasonable a non-prison sentence child porn downloading in Bistline

As first reported in this post, a Sixth Circuit panel early last year in US v. Bistline, 665 F.3d 758 (6th Cir. 2012), ruled that is was substantively unreasonable to impose a non-prison sentence on a defendant who "pled guilty to knowingly possessing 305 images and 56 videos of child pornography on his computer" and faced a recommended guideline sentence of 63-78 months’ imprisonment."  Thereafter, just about a year later as reported in this post, U.S. District Judge James Graham resentenced this defendant to the same sentence imposed the first time around, but also ruled that the 70-year-old Richard Bistline must be confined to his Knox County home for the first three years of probation.

Today, via US v. Bistline, No. 13-3150 (6th Cir. June 27, 2013) (available here), the same Sixth Circuit panel has yet again deemed this sentence substantively unreasonable through an opinion that quotes a lot of what the panel said the first time around.  Here is how the lastest Bistline opinion concludes:

Throughout the process of imposing Bistline’s first sentence and then his second, the district court placed excessive weight on the few factors that favor a lesser sentence, while minimizing or disregarding altogether the serious factors that favor a more severe one.  The result once again was an abuse of the district court’s discretion. The sentence imposed on remand does not “reflect the seriousness of the offense”; it does not meet the retributive goal of “provid[ing] just punishment for the offense”; and it does not “afford adequate deterrence to criminal conduct[,]” among other deficiencies. 18 U.S.C. § 3553(a)(2)(A), (B).  Bistline’s sentence is substantively unreasonable.

The government also requests that we reassign the case to a different district judge for resentencing. In deciding whether to reassign a case, we consider, among other factors, “whether the original judge would reasonably be expected . . . to have substantial difficulty in putting out of his mind previously-expressed views or findings[.]”  United States v. Garcia-Robles, 640 F.3d 159, 168 (6th Cir. 2011) (first alteration in original) (quoting Bercheny v. Johnson, 633 F.2d 473, 476–77 (6th Cir 1980)).  The record in this case makes clear that the district judge would have such difficulty here.  Moreover, on remand, the district judge said the following: “If I have got to send somebody like Mr. Bistline to prison, I’m sorry, someone else will have to do it. I’m not going to do it.”  We therefore grant the government’s request to reassign the case.

Bistline’s sentence is vacated, and the case remanded for reassignment and resentencing.

At this stage, and with a reassignment now ordered, it will be interesting to see if the defendant here might seek en banc review or even certiorari in an effort to find a group of judges who might be prepared to conclude this sentence is reasonable despite being well below the calculated guideline range.

Prior related posts:

UPDATE:  Over at the Sixth Circuit Blog, Bradley Hall has this new lengthy post about the Sixth Circuit's work in Bistline which it titled "The Sixth Circuit is a Sentencing Court." It gets started this way:

In a troubling line of cases culminating in today’s decision in United States v. Bistline (Bistline II), the Sixth Circuit has engaged in "substantive reasonableness" review to impose an inflexible rule that in cases involving the possession of child pornography, district courts must impose prison sentences, regardless of whether their analysis of the 18 U.S.C. § 3553(a) factors tells them that prison would be "greater than necessary" to effectuate the statutory goals of sentencing, and regardless of the fact that Congress itself elected not to impose a mandatory minimum sentence.

The analysis in this post reinforces my sense that the defendant here ought to at least take a shot at en banc review before concluding that the Sixth Circuit has essentially mandated that he get sent to federal prison.

June 27, 2013 at 03:09 PM | Permalink

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Comments

What do you expect from judges Otis, Otis, and Otis.

Posted by: observer | Jun 27, 2013 3:33:33 PM

"if the defendant here might seek en banc review or even certiorari in an effort to *find a group of judges* who might be prepared to conclude this sentence is reasonable despite being well below the calculated guideline range" (emphasis added)

On a child porn case? Get real.

Posted by: Daniel | Jun 27, 2013 4:17:00 PM

observer --

Thanks for the promotion. I'll tell President Cruz that I have your endorsement.

Posted by: Bill Otis | Jun 27, 2013 4:34:28 PM

observer --

P.S. You might need to "observe" the opinion a bit more carefully. Judge Gilman was a Clinton appointee. Clinton didn't appoint too many Otis-types to the bench.

I might add that removing the district judge is almost unheard of, and is a public slap in the face. I don't know for sure, but my bet is that the opinion got circulated to all the judges in regular active service before it got released, to see if anyone had an objection to the removal. Circuit judges, no matter what their politics, generally don't care for open defiance from district judges, and that's what this was.

Posted by: Bill Otis | Jun 27, 2013 4:57:26 PM

Does this mean that despite a statutorily defined range of 0-15, courts in the Sixth Circuit can never give 0?

Posted by: Barbara | Jun 27, 2013 5:29:58 PM

@Barbara: Yes, courts can give no prison time in appropriate cases. The Sixth Circuit's reasoning seems to be that the bottom end of the range is intended for "minor" offenders (or as minor as C.P. can be), and this guy's case was a lot more than that. He had 305 images and 56 videos on his computer, which suggests that he wasn't a casual or inadvertent consumer.

I cannot imagine that a cert. petition would be successful in a case like this. I am not aware of any relevant circuit split on this specific issue. Given the premise that appellate courts can reverse for substantive unreasonableness (which some justices dislike in the first place), I don't see any error in this particular case. That doesn't mean that another set of jurists couldn't have reached the opposite conclusion, but you're not going to get cert. just because "reasonable minds can differ." The Sixth Circuit would need to be wrong on the law or to have abused its discretion, and that's clearly not at issue here.

Posted by: Marc Shepherd | Jun 27, 2013 6:13:06 PM

personaly i think its a crock of shit! Just how many times does the state get a DO-OVER till it get's the sentence it wants!

Legally and Constutionally NONE! They get one shot! no do-overs allowed Unless they can show some type of criminal action by the defendant to influence the judge!

If they don't like the action of the judge. They have a legal and constitutionial solution. Remove Him! Still won't change the sentence at issue. But will stop any more.

Posted by: rodsmith | Jun 28, 2013 1:18:51 AM

A serious legal critique of the opinion is available at http://circuit6.blogspot.com/

In part, it reads:

In opposition to Mr. Bistline’s Petition for a Writ of Certiorari, the Solicitor General argued that the Sixth Circuit did "not require that the district court impose a particular sentence on remand." It appears that the Solicitor General was mistaken.

The Sixth Circuit’s holding in this case is both simple and remarkable: Richard Bistline must go to prison, period. This from an appellate court.

Posted by: John Minock | Jun 28, 2013 7:59:20 AM

305 images and 56 videos... Child porn videos are usually of the 5 second variety and each video equals "600" pics in the courtroom., but the headlines in the news never mention that. They make these people out to be monsters with huge stashes of porn.
Time to stop "sensationalizing" the child porn issue, it is what it is, someone "looked" at something on a website that was most likely "free".
Time for those convicted to start lawsuits against the websites that posted this "free" stuff that landed them in jail.
And if the 70 year old doesn't belong in prison because of his age, his health, his wife's health, etc, then neither does anyone else, everyone has a reason why they shouldn't be in prison.
Stop using prisons to house innocent people who "looked" at something on the internet. That's just plain crazy!

Posted by: kat | Jun 28, 2013 9:05:05 AM

This thread is a lesson for assessing one of the key arguments made in favor of Leahy/Paul: That if, in the absence of mandatory minimums, the district judge goes off the leniency deep end, hey, that's OK, because the court of appeals will always be there to insure that off-the-deep-end sentences will be corrected.

So now we have a preview of how that's ACTUALLY going to work: Those now providing the assurance of the much-touted appellate backstop rip into the Sixth Circuit for providing exactly that!

This is called the old "bait and switch": Sure, we'll give you a backstop, only when the backstop shows up, we'll beat it into submission. Anyone who relied on the "appellate backstop" argument was just a fool. The idea was never to be able to reverse absurdly low sentences; the idea was to protect them.

Posted by: Bill Otis | Jun 28, 2013 9:49:34 AM

Whats the chance we see a compliant filed on Judge James Garaham? Impeachment proceedings should be in order, but since he's in senior status I doubt congress will lift a finger. Imagine a Judge who openly States HE REFUSES to senetnce someone to jail and someone else will have to do it. A 63-78 mo guideline case and he gives this pornographer 30 days home confinement...a joke. Lets hope the next judge gives him a 4-5 yr sentence...

Posted by: DeanO | Jun 28, 2013 11:07:08 AM

The panel found it inconvenient to acknowledge most of the evidence in this case. The images were not sadomasochistic, which is why the government did not seek that enhancement. Unlike most child porn offenses, there were only 4 images of technical rape, i.e., penetration however slight. Many of the images involved no contact at all and some were of older teenagers or adults. While disgusting (as the district court found), the point is that this "collection" was less serious than in most cases, and of course even Otis would agree that defendants who commit offenses of differing seriousness should not be punished the same. There were 305 images and 56 movie files, many of which were copies of the same thing. The panel assiduously ignored the record in this case, including an evaluation concluding that Bistline was at very low risk to re-offend by looking at child pornography and was at no risk of ever harming a child, and the polygraph results to that effect. According to he Commission's report on child pornography, this defendant was at the lowest possible end of the spectrum of offense seriousness, and also had compelling mitigating factors.

Posted by: anonymous | Jun 28, 2013 1:06:04 PM

anonymous --

"The panel found it inconvenient to acknowledge most of the evidence in this case. The images were not sadomasochistic, which is why the government did not seek that enhancement."

Well that's cool! Little girls only get raped, not TORTURED and raped. How excellent! And you forgot to mention that they didn't get snuffed, either!

Far out!!!

You're right. The defendant didn't deserve a prison sentence, he deserved a medal. There must be boatloads of mean stuff he DID'NT do!!!

I just don't know how society can be so Puritanical. Hey, ya know, a coupld of eight year-old's get raped. Get a life, people. Stuff happens, dontcha know.

Posted by: Bill Otis | Jun 28, 2013 3:01:07 PM

No, he didn't deserve a medal Bill. But he did not rape these kids. He saw a picture or video of it happening. I don't think it is absurd to believe that, in certain circumstances, looking at a picture or video does not merit a term of imprisonment. Let's also not forget that due to publicity and registration, this man's life is over.

Posted by: Barbara | Jun 28, 2013 3:12:35 PM

This is a fascinating crime in the sense that the public outrage runs like a movie through the public's imagination. In other words, it is too subjective. Jung would call this projection in some instances. Compare Mr. Bill's comments with anonymous | Jun 28, 2013. One speaks of the crime as pictured and the other tries to speak in facts. But who really knows what the actual crime was? If we can agree there is a difference between a 17-year-old lifting her blouse and a infant getting raped, we can agree there are differences in degree. And yet both are child porn. What's more, our outrage may imagine the latter when the former is the fact. Any government can do anything it wants to anyone it wants with this threat.

Posted by: George | Jun 29, 2013 2:15:34 AM

Some courts (and most prosecutors) do not think it relevant to punishment that for a 70 year-old-man with no prior criminal history,“the stigma of a felony conviction is permanent and pervasive.” U.S. v. Smith 683 F.2d 1236, 1240 (9th Cir. 1982. Nor do they think it relevant that such a conviction “irreparably damages one's reputation.” U.S. v. Wulff, 758 F.2d 1121, 1125 (6th Cir. 1985). Nor do they think it relevant that felons "will endure new forms of punishment capable of generating more anger, more shame, and the scars of permanent social stigma… and that] most states…bar many ex-felons from living in public housing, from working in a wide variety of jobs and professions, and from receiving a range of forms of public assistance including school subsides, income support and food stamps…These [are ]enduring disabilities….” Ernest Drucker, A Plague of Prisons (The New Press 2011), at p. 130.

These courts and prosecutors refuse to accept that the punishment of incarceration may be "greater than necessary" for a just sentence even in crimes far more serious than the one here even though the Supreme Court has so held, reasoning that a sentence of probation is “a substantial restriction of freedom.” Gall v. U.S. 552 U.S. 38 (2007); see U.S. v. McFarlin 535 F.3d 808 (8th Cir. 2008) (in case of conspiracy to distribute drugs where and max. sentence five years, though guidelines call for 10 years, district court’s sentence of probation and home detention for three years not unreasonable in view of defendant’s poor health (multiple heart surgeries, etc.); U.S. v. Bueno 549 F.3d 1176 (8th Cir. 2008) (where defendant possessed more than 70 kilograms of cocaine, and guidelines 108-135 months, sentence of probation with house arrest for five years not unreasonable given wife’s life-threatening illness and dependence on defendant).

Further, most courts recognize that in cases of possession of child pornography (as opposed to production or distribution), a sentence of probation with one year house arrest is not unreasonable. See U.S. v. Stall 581 F.3d 276 (6th Cir. 2009) (in child porn. case where guidelines 57-65 months, court’s sentence of 1 day in jail, 10 years supervised release, and one year house arrest, not unreasonable in part because of ongoing therapy, and unlikely chance of recidivism, and that imprisonment would interrupt course of treatment; U.S. v. Autery 555 F.3d 864 (9th Cir. 2009) (in child porn. case, where guidelines 41-51 months, court’s sua sponte variance to probation not unreasonable in part because of district court’s determination that incarceration “would undermine” defendant’s rehabilitation and that “probation with psychiatric treatment was a more appropriate sentence” than incarceration); U.S. v. D.M, (E.D.N.Y May 1, 2013) (where defendant 22 years of age pled guilty to possession of child porn., and guidelines 78-97 months, sentence of probation appropriate in part because little likelihood he will engage in future criminal conduct); U.S. v. Stall 581 F.3d 276 (6th Cir. 2009) (where guidelines 57-65 months, court’s sentence of 1 day in jail, 10 years supervised release, and one year house arrest, not unreasonable); U.S. v. Rowan 530 F.3d 379 (5th Cir. 2008) (in child porn case where guidelines 46-57 months, sentence of five years supervised release not unreasonable in light of Gall).

Posted by: Michael R. Levine | Jul 1, 2013 1:35:17 PM

Kat (on 6/28) and Barbara (on 6/28) couldn't be more wrong. These people and this defendant are not just LOOKING at these pictures. They are actively DOWNLOADING the pictures and videos. If I just LOOK at this blog every day for 365 days, I will not have 365 images in my hard drive at the end of the year. If I DOWNLOADED this blog by right clicking, giving instructions as to where to store it and wait for it to download, so that I can VIEW the contents AS OFTEN AS MY HEART DESIRES, then I would have 365 images of this blog on my hard drive. Once and for all, these people are NOT JUST LOOKING, THEY ARE ACTIVELY DOWNLOADING THESE FILES. These are not innocent "Looking Lous" they are law breaking individuals who get a sexual thrill out of watching 8 year old girls being raped repeatedly. I am just flabbergasted by people making incorrect excuses for these people, they sicken me almost as much as those who are DOWNLOADING these images!

Posted by: Aaliya | Jul 2, 2013 9:54:54 AM

Another primary justification for severely punishing child pornography possessors is that
they support the market for child pornography and thus encourage the abuse of more children in
order to create new images. See 136 Cong. Rec. S4730 (Apr. 20, 1990). Aside from the evidence
that disproves this belief in general, see Part IV.A.2, infra, Mr. Client did not pay for or trade any
images. Moreover, there is no communication or contact between Lime Wire users: Just as Lime
Wire did not notify Mr. Client when it shared images from his computer with the FBI agent, Lime
Wire did not notify the person(s) from whose computer(s) it obtained images it sent to Mr. Client.
Indeed, as an FBI agent testified in another case, when law enforcement downloads files from
Lime Wire, it is not contributing to the global demand for child pornography and not causing any
new child pornography to be made because the files already exist and no financial or other
incentive is given.4

4
Tr.of Sent’g Hr’g at 31-32, United States v. Bistline, No. 2:09-cr-00085-JLG-TPK (S.D. Ohio Jan. 7,
2010).

AN FBI AGENT ADMITTED VIEWING CHILD PORN DOES NOT CONTRIBUTE TO NEW CHILD PORN BEING MADE AND THAT IT ALREADY EXISTS FOR DOWNLOADING THUS NO INCENTIVE!

Posted by: DA_FUQ_WIN | Jan 8, 2014 5:52:40 PM

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