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June 18, 2007

Ninth Circuit upholds enhancement based on conduct during Nixon Administration

Anyone who thinks the Ninth Circuit is a maverick court that shows undue sympathy to criminal defendants ought to be sure to read its work today in US v. Garner, No. 06-10417 (9th Cir. June 18, 2007) (available here). Here is the opening paragraph:

This appeal tests the temporal and relational limits of prior conduct as a sentencing enhancement.  In it, James Garner ("Garner"), sentenced to 262 months following his guilty plea conviction for two counts of attempted receipt of visual depictions of a minor engaged in sexually explicit conduct and six counts of distribution of visual depictions of a minor engaged in sexually explicit conduct, all in violation of 18 U.S.C. § 2252(a)(2), contends the district court erred by using thirty-five-year-old conduct to enhance his sentence and that his resulting sentence is unreasonable.  We affirm.

June 18, 2007 at 12:54 PM | Permalink


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Tracked on Jun 25, 2007 7:50:14 PM


If someone is a lifelong sicko, as it appears this guy is, why wouldn't we use that to enhance one's sentence.

Posted by: federalist | Jun 18, 2007 1:33:24 PM

Love that "maverick" allusion.

Posted by: Kent Scheidegger | Jun 18, 2007 1:50:08 PM

Thanks for noticing, Kent... I was trying to work in the Rockford Files, too, but I could not quite stretch that far.

Posted by: Doug B. | Jun 18, 2007 2:07:08 PM

Did anyone read the opinion? The guy was inquiring as to the sexual activity of his own granddaughter. Somehow, the word "sick" does not do justice as a description.

As for the Ninth Circuit, it must always be remembered that the Ninth, like all other circuits, is made up of individual judges, and a particular panel may or may not reflect the views of the court as a whole. We saw this in Scott v. Harris. The decision that was overturned was written by Judge Rosemary Barkett, a judge certainly not representative of the 11th Circuit as a whole.

Posted by: federalist | Jun 18, 2007 2:08:19 PM

Silly post. The conduct in question was sexually abusing his own children.

Posted by: | Jun 18, 2007 2:12:41 PM

I can't find the part that explains what the defendant's role was in the Nixon Adminstration. I know the White House staff committed many crimes then, but what was Garner's position exactly?

Posted by: Peter G | Jun 18, 2007 2:48:42 PM

uh, federalist, Betty Fletcher was on the panel and she's likely one of the three or four most liberal members on the Ninth Circuit, especially on criminal issues. Hawkinson, the author of the opinion, is also quite liberal, although probably a moderate on the Ninth Circuit. I don't know anything about the Sixth Circuit judge.

If you're a cirminal defendant and you draw Fletcher and Hawkinson, though, you're pretty lucky.

Posted by: Elson | Jun 18, 2007 4:43:40 PM

While it is easy to be glad this man will never get out of prison, I have a question.

"The presentence report recommended a five-level increase
in offense level because Garner had engaged in a “pattern of
activity involving the sexual abuse or exploitation of a
minor.” U.S.S.G. § 2G2.2(b)(5)."

Should this be a matter for the jury to decide? In other words, should he be tried for U.S.S.G. § 2G2.2(b)(5) and proved guilty beyond a reasonable doubt? Granted, a jury may have easily so found, but that is not the question.

Posted by: George | Jun 18, 2007 4:50:00 PM

Elson, my point was more general than that.

I know pretty well the proclivities of most Ninth Circuit judges. Somehow I doubt that Reinhardt or Paez would have dissented on this one . . . . .

Posted by: federalist | Jun 18, 2007 4:57:26 PM

George, what you're suggesting is precisely what Justice Stevens and three other justices had proposed in Booker. But that opinion was a dissent. The Breyer majority held that the now-advisory Guidelines would continue to be calculated based on judge-found facts.

Posted by: Marc Shepherd | Jun 19, 2007 6:45:39 AM

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