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December 8, 2014

Seventh Circuit affirms, over government complaints, way-below-guideline sentence for child porn producer

Regular readers are familiar with my tendency to lament the failure of circuit courts to scrutinize rigorously post-Booker claims by defendants that within or above-guideline sentences are unreasonably high.  But a recent opinion from a Seventh Circuit panel in US v. Price, No. 12-1630 (7th Cir. Dec. 5, 2014) (available here), prompts me to note that there can be occassions when circuit courts seem a bit too willing to approve way-below-guideline sentences that the government asserts are unreasonably low.  Here are the basics of the defendant's crime and sentencing in Price:

Jeffrey Price took numerous sexually explicit photographs of his daughter R.P. when she was between the ages of 10 and 12.  He put some of them on the Internet, and they have been implicated in at least 160 child-pornography investigations across the country.  Price also kept a large stash of child pornography depicting other children, which he stored on two computers.

For this conduct Price was indicted on charges of producing child pornography in violation of 18 U.S.C. § 2251(a) and possessing child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B).  A jury convicted him as charged.

Price is more dangerous than the average child-pornography offender because he also has a history of sexually abusing children.  He molested R.P. on multiple occasions, and he sexually abused his sister on a regular basis when she was between the ages of 8 and 14. Despite this history, the district judge imposed a sentence well below the 40-year term recommended by the sentencing guidelines: 18 years on the production count and a concurrent 6-year term on the possession count.

Here is the heart of the Seventh Circuit panel's rejection of the government's appeal of this sentence (with my emphasis added):

The government argues in its cross-appeal that Price’s 18-year sentence — less than half the 40-year guidelines sentence — is substantively unreasonable....

The district judge did exactly what she was supposed to do under the advisory guidelines regime. She correctly calculated the guidelines sentence and exhaustively considered the § 3553(a) factors, giving particular emphasis to the aggravated facts of this case. But she also exercised her discretion to consider the scholarly and judicial criticism of the guidelines for child-pornography offenses, as she is permitted to do. She expressed substantial agreement with the Second Circuit’s opinion in United States v. Dorvee, 616 F.3d 174 (2d Cir. 2010), which explained that the guidelines in this area are not the product of the Sentencing Commission’s empirical expertise, but rather reflect directions from Congress to punish these crimes more harshly, id. at 182.  Dorvee also notes that § 2G2.2, the guideline for possession of child pornography, calls for the application of multiple enhancements that apply in almost every case, making inadequate distinctions between the worst offenders and those who are less dangerous. Id. at 186–87.

The judge acknowledged that most of the criticism of the child-pornography guidelines is aimed at § 2G2.2, the guideline for the possession offense. But she concluded that § 2G2.1, the guideline for production of child pornography, “presents some of the same problems.” Both guidelines, she said, are vulnerable to the critique that they are not the product of the Sentencing Commission’s empirical study and independent policy judgment. She also noted that both guidelines call for enhancements that apply in nearly every case, exerting virtually automatic upward pressure on sentences and failing to separate less dangerous offenders from those who are more dangerous....

The government objects that Price’s 18-year sentence is only three years above the 15-year statutory minimum. See § 2251(e). Canvassing the aggravated facts of the case and Price’s history of sexually abusing children, the government argues that the sentence strays too far from the 40-year guidelines sentence and is simply too low to be considered substantively reasonable. “At the very least,” the government maintains, the sentences for the production and possession counts should be consecutive, as the guidelines recommend. See § 5G1.2(d).

Price’s crimes are indeed deplorable, and a sentence of 18 years obviously represents a substantial variance from the recommended 40-year term. But there is room for policy-based disagreement with the guidelines even to this extent. The government has not established that the sentence exceeds the boundaries of reasoned discretion. More specifically, the government has not established that an 18-year sentence for Price’s crimes — even in light of his contemptible history and unrepentant nature — is so low as to be substantively unreasonable.

I have been one of a number of academic critics of the severity of the federal child pornography sentencing guidelines, but that criticism has been largely based on the fact that these guidelines often call for decade-long sentences even for those offenders who did no more than download illegal pictures and thereafter showed remorse, pleaded guilty and sought treatment for their criminal activity. In contrast, the defendant in this Seventh Circuit case seemingly has a long history of child rape to go along with producing and possessing child pornography, and the Seventh Circuit recognizes he has both he has an "contemptible history and unrepentant nature."

Though perhaps 18-year in prison is still plenty long enough for this sexual predator (as the district judge apparently concluded), I would have liked to heard a lot more from the Seventh Circuit about how this way-below-guideline sentence appears reasonable in light of all of the 3553(a) factors. Especially for a defendant who has already shown himself to be a significant danger, "close enough for government work" is not all that satisfying an approach to reasonableness review in my view.

December 8, 2014 at 06:09 PM | Permalink

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Comments

I am surprised anyone is perplexed by such a decision, after the many years of running a free tutorial for the legal profession in these comments.

The defendant is a vicious child rapist and porn producer. He likely has 100's of victims not the few mentioned. He is unrepentant. He is so heartless as to destroy the life of one of his own family for a few moments of sexual pleasure. So naturally, the lawyer on the bench, and they are part of the lawyer hierarchy, have to protect and empower him to commit more crime after serving what? 6 years?

Now the average IQ in prison is 85. On the federal bench, it is likely to be 145. The prisoners understand how bad he is. The Judges have no clue. Why? They are lawyer dumbasses, whose intellect has been carpet bombed by their legal educations, and have become idiots with less logic and common sense than the special ed students coming before them.

The First Amendment Free Press Clause is a two sided coin. One side is well known, to publish freely. The other side is a right to read the publications. The criminalization of downloading child porn has a policy effect of increasing the child sexual abuse of real children, and the legalization lowers the rates of sexual abuse of real children. This effect was also seen after adult porn was legalized, and rapes of real women decreased.

If the downloading of child porn encourages its production by funding it, then viewers should be punished and held accountable for the viewing of a beheading, car crashes, slips and falls, babies falling after taking first steps, dogs running in circles. On the other hand, viewers should be rewarded and paid when watching something good, such as a great golf shot, a successful union contract negotiation, winning a prize for Most Valuable Player. Why? Because, by watching it they encouraged more good things to happen.

Posted by: Supremacy Claus | Dec 8, 2014 11:09:55 PM

Doug, I think what you are looking for is in the opinion, you are not parsing it closely. I don't see them as saying "close enough" in the abstract. I understand them to be saying that it's close enough because child porn sentences are so out of whack. Personally, I think child porn producers should be punished more harshly than child porn consumers (who I don't think should be punished at all) but it's hard to make that case when child porn consumers are already punished so harshly.

Again, this is one of those cases where it's useful to look at what other countries do. In the UK he'd be looking at three years.

Posted by: Daniel | Dec 8, 2014 11:43:48 PM

40 years seems unnecessarily long in most cases anyway, but there is more justification for applying it to a producer instead of just a possessor. In addition, I'm not sure "well, it's just what Congress wanted us to do" is somehow better to ignore than "the sentencing commission decided it." The sentencing commission has expertise, but they still just receive a mandate from Congress. Congress reflects democratic decision-making of appropriate punishments. If the punishment violates the Eighth Amendment, say that. Otherwise, I would have to imagine its entitled to great weight. There may be mitigating circumstances in this particular case, but "I disagree with Congress" should never be one of them.

Posted by: Erik M | Dec 9, 2014 7:00:04 AM

I would have liked to heard a lot more from the Seventh Circuit about how this way-below-guideline sentence appears reasonable

Is that their job? Wasn't the question to the Seventh Circuit: is the sentence so unreasonable that we must overturn the trial judge's decision?

Posted by: adcwonk | Dec 10, 2014 10:51:47 AM

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