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May 18, 2015

DC Circuit on child porn and sentencing manipulation and nonfrivolous arguments (aka departures and variances and Booker, oh my!)

I sometime consider Washington DC to be a land like Oz where weird, and sometimes magical, sometimes scary, sometimes bizarre, events can transpire.  Thus, when reading the DC Circuit's recent  opinion in US v. Bigley, No. 12-3022 (DC Cir. May 15, 2015) (available here), I kept hearing Dorothy's voice as the opinion twisted and turned through a variety of notable sentencing issues in the dark Booker forest.  Here is how the per curiam opinion gets started:

Before United States v. Booker, 543 U.S. 220 (2005), rendered the U.S. Sentencing Guidelines advisory, we forbade district courts from relying on sentencing manipulation as a basis for mitigation.  See United States v. Walls, 70 F.3d 1323, 1329–30 (D.C. Cir. 1995).  But Booker and its offspring fundamentally changed the sentencing calculus, requiring courts to now consider any mitigation argument related to the sentencing factors contained in 18 U.S.C. § 3553(a) when imposing a sentence within the statutory range of punishment. See Pepper v. United States, 131 S. Ct. 1229, 1241–48 (2011); Kimbrough v. United States, 552 U.S. 85, 101–02 (2007); Rita v. United States, 551 U.S. 338, 357 (2007). A sentencing court, post-Booker, must consider nonfrivolous arguments for mitigation, even if those arguments were previously prohibited under the mandatory guidelines regime. Because the district court failed to consider a nonfrivolous claim of sentencing manipulation when it pronounced its sentence, we vacate the sentence and remand.

Notably, the full opinion for the DC Circuit panel here does not quite say that a district court always has an obligation to address expressly a nonfrivolous argument raised by the defendant. Judge Rogers concurs separately to advocate such a holding by the circuit:

“Sentencing is a responsibility heavy enough without our adding formulaic or ritualized burdens.” United States v. Cavera, 550 F.3d 180, 193 (2d Cir. 2008).  I am not indifferent to concerns about saddling busy district courts with more procedural loads and I appreciate this court’s reluctance.  But the burden of providing a brief explanation is small and the advantages great.  “Most obviously, [an explanation] requirement helps to ensure that district courts actually consider the statutory factors and reach reasoned decisions.” Id. at 193; see also In re Sealed Case, 527 F.3d 188, 192 (D.C. Cir. 2008) (“The requirements that a sentencing judge provide a specific reason for a departure and that he commit that reason to writing work together to ensure a sentence is well-considered.”).  It also promotes the “perception of fair sentencing,” Gall, 552 U.S. at 50, and “helps the sentencing process evolve by informing the ongoing work of the Sentencing Commission,” Cavera, 550 F.3d at 193. When a sentencing court responds to a defendant’s arguments, it “communicates a message of respect for defendants, strengthening what social psychologists call ‘procedural justice effects,’ thereby advancing fundamental purposes of the Sentencing Reform Act.” See Michael M. O’Hear, Explaining Sentences, 36 FLA. ST. U. L. REV. 459, 472 (2009). The requirement also assures an adequate record with which we can conduct “meaningful appellate review.” Gall, 552 U.S. at 50. I would join the majority of circuits in holding district courts should address a defendant’s nonfrivolous argument for a variance from the Guideline range.

Though the formal ruling and the discussion of sentencing procedural are surely the most consequential aspects of this Bigbey ruling, I cannot overlook or fail to comment on the case facts and on how the remarkable severity of the federal child porn guidelines shaped the entire sentencing dynamic of this case. Here is the sad and remarkable (guideline) tale: The defendant in this case was charged and pled guilty to "one count of interstate travel with intent to engage in illicit sexual conduct with a minor" after he drove to DC to hook up with a (fictional) 12-year-old daughter of a friend of an (undercover) agent chatting on-line. At the suggestion of the agent, the defendant bought a digital camera with him on his trip to DC for taking pictures of the girl, which had this impact in the calculation of the guideline range:

When the probation office calculated his advisory sentencing guideline range, it employed the Section 2G1.3(c)(1) cross-reference guideline provision, which requires the application of Section 2G2.1 when an offense involves “causing, transporting, permitting, or offering . . . a minor to engage in sexually explicit conduct for the purpose of producing a visual depiction of such conduct.” U.S.S.G. § 2G1.3(c)(1). By applying Section 2G2.1, Bigley’s base offense level increased from 24 to 32, which, when the other guideline calculations were made, boosted his sentence guideline range from 46 to 57 months to 135 to 168 months of imprisonment.

In other words, because (and only because) the defendant was talked into bringing a digital camera on his illegal child booty-call trip, his recommended guideline sentence shot up from 4-5 years to 12-14 years. I have heard of some severe gun-possession sentencing enhancements, but I have never seen such a severe camera-possession sentencing enhancement.  Perhaps the NRA (the Nikon Rights Association) should consider filing an amicus brief at the resentencing.

May 18, 2015 at 06:00 PM | Permalink

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Comments

It would be funny if it wasn't so serious. I guess it's easy to laugh when it is not your life.

Posted by: Daniel | May 18, 2015 6:47:30 PM

Here is a mitigating factor I can support. No actus reus. Only a mens rea, totally induced by the police.

Here is another. Victim is a fictitious character.

Here is another. The camera is immunized by the Free Press Clause, not just his right to take vids, but the rights of his pals to view them.

This is a mitigating factor, the opinon and the sentencing contains nothing by lawyer gibberish, and is void, not voidable, for being written above the sixth grade readability level, and failing to give notice, a Fifth Amendment procedural due process.

Last mitigating factors. This is a witch hunt of the productive male by the vile feminist lawyer and its male running dogs. It is a hate group lynching.

Meanwhile, who knows how many hundreds of real victims this predator has raped, and the vile feminist lawyer has done nothing to protect our children. He should be spending all time in stir on the productive structured activity of being water boarded 12 hours a day, until all his crimes have been solved.

Posted by: Supremacy Claus | May 18, 2015 10:44:02 PM

I guess it doesn't bother me so much that someone who tried to arrange with (what he thought was) a parent to essentially rape a 12-year-old child and record the whole thing visually gets a tough sentence. Guess I'm weird for thinking that `12-year-olds deserve some protection...

Posted by: Question | May 19, 2015 7:43:46 PM

Question. What 12 year old girl was that?

I want to have sex with Cinderella. How about a threesome with Cinderella and Minnie Mouse? Arrest me.

Posted by: Supremacy Claus | May 20, 2015 2:37:16 AM

One has to wonder, where is the defense in these cases? Are they pals with the prosecution? They are allowing a conviction for attempted sex with a fictitious character depicted by a fat old, police officer. Is this adequate representation? Are they intentionally being stupid to preserve an appellate point?

If a representation is found inadequate, shouldn't that appellate decision represent a per se deviation from professional standards of due care? And a lawyer malpractice trial should restrict itself to the amount of compensation? Where is the tort bar on this question with so many appellate decision holding such representation took place?


Posted by: Supremacy Claus | May 20, 2015 7:06:38 AM

@ Supremecy:

The answer is that the attorneys were most probably public defenders who don't have a whole lot of time to properly research and defend such cases. In general, private attorneys want a minimum of $25,000 up front before defending sex offenses. I would contend that in over 90% of cases involving stings, most of the charges would be severely lowered or even dropped if competently defended by properly researched arguments.

I'm not defending the actions of (potential) offenders on computer stings, but the escalation from fantasy to potential criminal act cannot be properly assessed to whether an actual crime would take place or not.

Finally, some of the cases start with an adult to adult encounter, with the fake woman (sting operator) gradually introducing the (fake) child into the equation. The potential offender, who would have most probably shunned off such an attempt by the fake woman had the child been introduced from the beginning, is too emotionally/sexually involved with the fake woman to sometimes think straight. He may decide to agree to meet with the (fake) child, knowing (in his mind) that he would not agree once he meets with the (fake) woman in person.

In short, thoughts and even chats are litigated as actual contact offenses. Even child pornography has residual emotional damage, if the pictures of are actual children who were violated. However, cartoon pornography is being prosecuted, with the offenders convicted of felonies and lifetime sex offender registration for reading manga. By definition, there is no actual victim (other than the prosecutor's ludicrous claim that "such actions may lead to actual contact offenses").

But that's all irrelevant. Minimum cost to defend: $25,000. That's the bottom line.

Posted by: Eric Knight | May 20, 2015 1:11:34 PM

Eric. I am assuming you are not a lawyer because you speak like a human being.

Your point brings up another question. It is now assumed that a death penalty defense needs a $million budget (or some other large amount of money with 6 numbers in it). This budget represents a procedural due process right to a fair trial.

You are saying, the defense in these entrapment cases requires a 5 numbered amount. If one gets the cost of the defense, and it has 3 numbers or 4 numbers, is that a new appellate point, or reversible error, or the potential for one? Has that point ever been made on appeal of the sentencing?

Has the bill of the defense been made an appellate point outside of a death penalty trial?

Posted by: Supremacy Claus | May 21, 2015 9:17:40 AM

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