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June 20, 2018

Split Second Circuit panel reverses lengthy child porn sentence for second time; dissent notes "sentence is barbaric without being all that unusual"

I do not tend to blog much any more about circuit opinions conducting reasonableness review because, now more than a decade since the Supreme Court ensured reasonableness review would be very deferential thanks to Rita, Gall and Kimbrough, few circuit sentencing opinions break any new ground.  But though a Second Circuit panel opinion yesterday, US v. Sawyer, No. 15-2276 (2d Cir. June 19, 2018) (available here), does not break new ground, it still struck me as blogworthy for both the majority opinion and the dissent.

The majority opinion in Sawyer is well summarized by the preamble to the opinion: 

Appeal from a judgment of the United States District Court for the Northern District of New York (D’Agostino, J.) imposing a sentence of 300 months of imprisonment for the offenses of producing child pornography and receiving child pornography. This court previously vacated as substantively unreasonable a sentence of 360 months of imprisonment for the same offenses, identifying specific deficiencies in the district court’s analysis. The district court did not sufficiently address those deficiencies on remand and suggested that it would have difficulty putting aside its previously-expressed views.

The key factor that appears to have driven the original panel opinion and this second reversal was the "the district court’s failure to give sufficient downward weight to the effect of the severe sexual abuse Sawyer endured at home throughout his childhood."  Tellingly, even at the second sentencing, the district court stressed that the guidelines called for 80 years in prison(!), suggesting no "failure to afford sufficient weight to the way [the defendant was] raised in determining [his] sentence, looking at the fact that [the original sentence] departed by 50 years from the [80 year] guideline range."  In this way in this case,  we can and should see how extreme guideline ranges can persistently distort a district court's sentencing decision-making even after a circuit court has concluded that the district court failed to comply with the requirements of the first time around 3553(a).

Beyond noticing the impact and import of broken guidelines even in a case in which everyone agrees they should not be followed, the Sawyer case struck me as blogworthy because of a (casual?) line in the dissenting opinion by Judge Jacobs. Here is the context for the line quoted in the title to this post, with my emphasis added:

In decrying the 25-year sentence, the majority opinion observes (fairly) that this case is not the most heinous or egregious on record.  At the same time, however, this is not a case such as United States v. Dorvee, 616 F.3d 174 (2d Cir. 2010), or United States v. Brown, 843 F.3d 74 (2d Cir. 2016), in which decades of imprisonment were imposed solely for looking at images created by others, and in which any harm to a child was inflicted at one or more removes. This defendant was hands-on.  He produced the pornography, and he used a 4-year-old and a 6-year-old to do it.  For these acts, a 25-year sentence is not a shocking departure from sentences routinely imposed in federal courts for comparable offenses — especially considering that the mandatory minimum is fifteen.  The sentence is barbaric without being all that unusual.

I appreciate the candor and yet remain stunned by Judge Jacobs stating simply that the defendant's sentence here is "barbaric" but yet not "all that unusual" and thus ought to be affirmed despite the obligation of circuit courts to review sentences for their reasonableness in light of the requirements of 3553(a).

June 20, 2018 at 10:37 AM | Permalink

Comments

I guess it's a simple acknowledgement that Congress' penalties for these crimes are horrendously disproportionate. Use of the term "barbaric" does suggest an 8th amendment dimension, but he wouldn't get anywhere with that and knows it.

Posted by: Fat Bastard | Jun 20, 2018 2:08:52 PM

I guess I should say for possession/receipt/trafficking crimes. Production is a whole other kettle of fish. That is indistinguishable from child molestation and has the added culpability of recording it for posterity and potentially profit.

Posted by: Fat Bastard | Jun 20, 2018 2:45:35 PM

@FatBastard

From the opinion,

"the sexual exploitation charges arose out of approximately 30 cellphone photos taken by Sawyer of two young girls, aged 4 and 6 at the time of the offenses. The girls had close relationships with Sawyer. The photos depicted the children’s genitals. Sawyer kept the photos and there was no evidence that he
took any steps to distribute them to third parties."

25 years for that? I'm just sorry but IMHO that is not a crime at all. My own mother would have been guilty of abusing me if that had been the law when I was a kid.

Posted by: Daniel | Jun 20, 2018 4:52:03 PM

I'm still waiting for the judge who disagrees with the guidelines for being unduly lenient. IMO that is what it will take for reasonableness review to be given any teeth, at that point we discover whether the discretion afforded district court judges is actual.

Posted by: Soronel Haetir | Jun 20, 2018 5:45:39 PM

Thanks for the post Doug. I saw the decision and was also perplexed by the dissent. Random ruminations, some quite exceptions, without going anywhere or any explanation as to what should follow.

Posted by: Anon | Jun 20, 2018 5:48:29 PM

He was producing child porn? That's a problem. Hard to say much more without details, but if he was in the presence of actual children being abused, I would not be inclined to cut him much slack.

Posted by: William Jockusch | Jun 20, 2018 11:11:50 PM

Fair enough, Daniel, I did not read the opinion. Figures that that satisfies the government's burden of proof for production of CP (the way those statutes have been interpreted, along with the related guidelines, is fairly shocking).

Generally speaking, however, I think my statement about production vis a vis possession/receipt/trafficking holds true. The latter crimes generally are much less culpable than production, yet frequently receive very harsh treatment.

Posted by: Fat Bastard | Jun 21, 2018 7:07:27 PM

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