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July 26, 2007

Sixth Circuit reverses extreme upward variance in sex offender case

Adding to its impressive corpus of post-Booker jurisprudence, a split panel of the Sixth Circuit today in US v. Poynter, No. 05-6508 (6th Cir. July 25, 2007) (available here), reverses a large upward variance in a sex offense case.  Here is how the opinion begins and one of  many strong passages from the majority's analysis (per Judge Jeff Sutton and cites omitted):

Avery Poynter, 36 years old, pleaded guilty to traveling in interstate commerce for the purpose of engaging in illicit sexual conduct with two minors.  After calculating a guidelines range of 188–235 months and considering the § 3553(a) factors, the district court imposed a 720-month sentence (the statutory maximum) because Poynter was a repeat child sex offender.  Unable to conclude that this variance resulted from a reasonable application of § 3553, we reverse....

By relying on a problem common to all repeat sex offenders (recidivism) in increasing Poynter's sentence and by failing to offer meaningful distinctions between the risk that Poynter posed to the public and the risk that other sex offenders posed to the public, the district court left us little room to distinguish between Poynter and other sex offenders.... As utterly depraved as this crime is and as forever scarring as it must be to be victimized by it, not all repeat sex offenders deserve what amounts to a life sentence; otherwise, Congress would not have set a statutory range of 0–60 years.   While there is no yardstick perfectly calibrated to measure one crime and one criminal from the next crime and the next criminal, there are certainly measurable differences between Poynter's situation and the situation of offenders who might warrant the statutory maximum or something approaching it.

Here is how Judge Siler's brief dissent begins:

I respectfully dissent, not because I think that my colleagues do not know the law, but because this is such a discretionary matter that I believe when the district court correctly calculates the Guidelines range and then considers the § 3553(a) factors, the sentence should be upheld, unless the court adds a factor which should not have been considered under § 3553(a) or unless the circumstances of the crime or the offender were such that no variance from the Guidelines could be justified.

July 26, 2007 at 09:55 AM | Permalink


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