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May 15, 2007

Sixth Circuit reverses below-guideline sentence in child porn case

The Sixth Circuit this morning, in an interesting split 2-1 ruling, has reversed a below-guideline sentence in US v. Borho, No. 06-5288 (6th Cir. May 15, 2007) (available here).  Here are the basics from the start of the opinion:

Norman Borho pled guilty to three counts of distributing child pornography in interstate commerce, in violation of 18 U.S.C. § 2252(a)(1), and to one count of receiving child pornography that had traveled in interstate commerce, in violation of 18 U.S.C. § 2252(a)(2). The applicable United States Sentencing Guidelines called for a sentence of between 210 and 262 months of imprisonment, but the district court imposed a sentence of only 72 months. On appeal, the government argues that the sentence should be vacated and remanded for resentencing because such a large downward variance from the Guidelines range in this case is substantively unreasonable.  We agree.

Judge Rogers' dissents, with this paragraph at the start of his thoughtful dissenting opinion:

I dissent because it was substantively reasonable for the district court to sentence a defendant to six years in prison for contributing in a small way to the market for pictures of despicable and revolting crimes against children.  While the sentence is not what my colleagues or I, or the United States Sentencing Commission, would have imposed, our duty under Booker is nonetheless to uphold the trial court's sentence if it is reasonable.

It will be interesting to see what might become of all the recent debatable reasonableness rulings that have been recently coming from the circuit courts once we get further guidance from the Supreme Court in Claiborne and Rita.

May 15, 2007 at 09:56 AM | Permalink


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Tracked on May 16, 2007 10:21:33 AM


Hey, this guy was a veteran. Shouldn't he catch a break? Or are we in a "lock 'em up" week?

Posted by: S.cotus | May 15, 2007 1:41:43 PM

Just because he is a veteran doesn't give him the right to DISTRIBUTE child pornography. The Circuit Court dissenter couldn't have been more incorrect by saying that the offender contributed in a "small way!" Every offender who distributes child pornography contributes to the further victimization of the child(ren) (who was most likely abused) depicted in the pictures. I would hope that former members of the military act with the dignity to warrant the high esteem people like me hold them to, not use their status to get a lower penalty for (at the very least) abetting the sexual victimization and abuse of children!

Posted by: Kelly | May 16, 2007 6:55:25 AM

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