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June 11, 2014

Eleventh Circuit holds USSC report criticizing CP guideline does not make within-guideline CP sentences unreasonable

Though not especially surprising or really ground-breaking, the Evelenth Circuit's ruling today in US v. Cubero, No. 12-16337 (11th Cir. June 11, 2014) (available here), rejecting an attack on a lengthy within-guideline child porn sentence still seems noteworthy and blog-worthy.

As detailed in the lengthy Cubero opinion, the defendant not only made much of mitigating personal factors, but also stressed in support of a below guideline sentence the US Sentencing Commission's recent report to Congress detailing problems with its own guidelines and a letter from a DOJ official criticizing the current child porn guidelines.  But the district judge opted to impose a within-guideline sentence of 12.5 years, and the Eleventh Circuit panel saw this decision as a permissible exercise of the district court's sentencing discretion.

 Here is the heart of some of the panel's discussion of the limited impact and import of the USSC's criticism of its own guidelines (with cites mostly removed):

[The Sentencing Commission's Child Porn to Congress] (1) does not alter the district court’s duties to calculate the advisory guidelines range and to impose a sentence after considering the § 3553(a) factors, (2) does not limit the district court’s discretion to determine what weight to give to each § 3553(a) factor, and (3) does not require the district court to vary from the § 2G2.2-based guidelines range. See 18 U.S.C. § 3553(a)–(b).  The district court was empowered with discretion to consider Cubero’s downward-variance arguments, many of which are now captured by and reflected in the 2013 [USSC CP] report, but the court was not compelled to vary downward....

Contrary to Cubero’s arguments, the 2013 report does not heighten the district court’s statutory duty to state the reasons for imposing a particular sentence. See 18 U.S.C. § 3553(c). And, the 2013 report does not alter the U.S. Supreme Court’s or this Circuit’s precedent regarding the district court’s obligations under 18 U.S.C. § 3553(c); namely, that a district court’s decision to apply the guidelines to a particular case does “not necessarily require lengthy explanation.”  Rita v. United States, 551 U.S. 338, 356, 127 S. Ct. 2456, 2468 (2007).

Based on current reasonableness jurisprudence, this Eleventh Circuit ruling is not out of the mainstream. If circuits were inclined, as I think they should be, to conduct reasonableness review in a more substantive and rigorous manner, then perhaps defendants might have a chance to prevail with claims that the 2013 USSC report assailing the existing child porn guidelines renders within-guideline CP sentences inherently suspect. But because reasonableness review has tended to be so very deferential, even when all agree that certain guidelines are so very flawed, I was not too surprised by this ruling.

June 11, 2014 at 10:57 PM | Permalink

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Comments

I think the sentence should be cruel and unusual, we must also ask ourselves, if an adult is raped and a video is produced, should possession of the video be illegal? We could also agree, the law legalizes watching a brutal rape of an adult that, but criminalizes a non-sexual nude or non-nude of a suggestive pose of a teenager, even if the teenager their own solo picture! The law also does not criminalize violent and torture videos of adults, while some can say it may not be arousing, there are folks who like to watch violent videos for entertainment and islamic fundamentalists who may love the videos. The Supreme court has also legalized "virtual child porn".

The fact that American judiciary which is supposed to be the "leader of the world" with its power,economic,and educational systems ignore the issue means American is downhill. Even many countries that are authoritarian would not impose such sanctions. The word "child porn" is a misnomer,
a 17 year old who takes a picture of himself of herself solo can be considered child porn or even non-nude photos in a pose.

Posted by: Alex | Jun 21, 2014 1:07:27 AM

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