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October 7, 2013

Fifth Circuit panel declares substantively unreasonable (and plainly erroneous) an above-guideline child porn sentence

I am always pleased to see examples of post-Booker reasonableness review being given some more teeth in the circuits, and a panel ruling released today by the Fifth Circuit in US v. Chandler, No. 12-30410 (5th Cir. Oct. 4, 2013) (available here), shows that even defendants convicted of child porn offenses can sometimes benefit from appellate judges taking reasonableness review seriously. Here are excerpts from the start and heart of the of the panel opinion in Chandler:

Richard Chandler pleaded guilty to engaging in a child exploitation enterprise. At sentencing, the district court varied upward by 127 months over the recommended Guidelines range to impose 420 months of imprisonment.  We find that the district court erred by increasing Chandler’s sentence based on the fact that he was a police officer. We remand for re-sentencing....

The parties agree that the district court correctly calculated Chandler’s Guidelines range as 240-293 months. In the PSR, the probation officer stated that he had not identified any factors warranting a departure or variance from the Guidelines range. Chandler did not file objections to the PSR, but he filed a Motion for Deviation from Sentencing Guidelines, arguing that a significant downward departure from the Guidelines was justified in his case because the sentencing scheme for possession of child pornography is unfair and the circumstances of his offense warranted leniency. The district court rejected Chandler’s motion, noting that Chandler was not a “mere possessor” because he had repeatedly posted child pornography. The district court ultimately imposed a sentence of 420 months of imprisonment, an upward variance of 127 months from the top of the Guidelines range. The district court found that the non-Guidelines sentence was justified by the nature and circumstances of the offense, particularly Chandler’s abuse of his public office as a law enforcement officer, his use of other people’s internet connections to attempt to hide his participation in the scheme, and the fact that he posted child pornography 117 times, mostly with children 8 to 14 years of age. Chandler did not object to the sentence. Chandler filed a timely notice of appeal....

Some of the comments made by the district court here, such as those stating that by being a police officer Chandler has placed himself in a different category and should be held to a higher standard, are similar to those in Stout and could be interpreted to cross the line into impermissible reliance on Chandler’s socioeconomic status as a police officer.

To the extent that the district court’s comments regarding Chandler’s position are findings that Chandler abused his position of trust or that the offense was more serious because of Chandler’s position, the district court likewise erred. Though we are mindful that our review in this case is only for plain error, our circuit precedent is clear that a defendant’s status as a police officer, standing alone, is not a justifiable reason to increase a sentence....

[T]hough the district court stated multiple times that it was varying upwards because Chandler abused his position, the district court did not rely on any facts showing that Chandler acted in his capacity as a police officer in posting child pornography on the internet. There is no evidence in the record that he used or exploited his position as a police officer, or used any knowledge or skills he gained from that position, to commit the offense or attempt to hide it.

The district court’s error was compounded by its mischaracterization of the conduct involved in Chandler “stealing” other people’s “identities” or “internet addresses.” The only description of this conduct in the record is in a sentencing memorandum filed by the government, which states that Chandler used other people’s unsecured wireless connections. Though the government refers to this as “stealing,” it essentially amounts to logging onto an open wireless network. While we agree with the government that such activity could have caused innocent people to be subject to investigation, it clearly is not equivalent to identity theft or any sort of skilled hacking activity, though the district court discussed it as if it required highly technical knowledge that Chandler acquired as a police officer.

October 7, 2013 at 04:55 PM | Permalink

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Comments

The fact that this guy could have ruined someone else's life by using their wireless connections warrants the sentence that was handed down here.

I would support LWOP here.

Posted by: federalist | Oct 8, 2013 1:15:41 AM

Re: LWOP

1. He used OPEN accounts to hide his use .
2. There was no evidence he ACTUALLY ruined another’s life.
3. Amendment XIII suggests not LWOP

I refrained from killing a rogue judge (whom God/G-d apparently believed should die); ought I be sanctioned because I could have killed him ?

Docile Jim Brady - Columbus 43209
[email protected]
Nemo Me Impune Lacessit

Posted by: Just Plain Jim (Just Another Guy) | Oct 8, 2013 8:01:05 AM

How is a criminal being a police officer _possibly_ not a relevant enhancing circumstance? This sort of case almost makes me wish that a judge had standing to appeal given that it is the judge's discretion that is being imited here.

If a judge is supposed to be able to vary from the guidelines based on policy disagreements over drug penalities then they should sure as hell be able to vary upward for such a huge breech of trust.

Jim,

The difference Federalist is pointing out is that this guy was uncaring about whether his use did in fact snare others, it's a willful indifference mmatter and one of luck that he did not. In your example yyou did not specify taking any particular action to bring about the death of the judge in question.

Posted by: Soronel Haetir | Oct 8, 2013 9:58:26 AM

I have had cases, not child porn, where judges varied downward because the D was active or former law enforcement and even more with active or former military.

Not sure how I personally feel about this one. Court has a point if there is no evidence that he used his position in any way to further his child porn activity.

Posted by: AUSA12 | Oct 8, 2013 11:38:20 AM

While the ruling that he gets a bit under 25 years rather than 35 years isn't that notable - the crime itself probably doesn't justify more than 5 years in any sane world; the holding the use of an unsecured wi-fi network isn't improper is quite notable.

Posted by: ohwilleke | Oct 8, 2013 2:07:18 PM

The federalist's comment is silly, possession of certain images and videos should almost never amount to the same sentence handed out to someone who murders someone in cold blue, sets arson in which folks get third degree burns, or gang members doing driver by shootings, or someone who does other grizzly crimes, I think a sentence could be enhanced for the production team, but again child porn is a broad term encompassing non-sexual activity of all folks under 18, if a person is an suggestive pose, it could be considered child porn.

Posted by: Kris | Jan 18, 2014 2:36:03 PM

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