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November 7, 2007

Eighth Circuit shows yet again that within-guideline sentences are essentially per se reasonable

I was hopeful — though not especially optimistic — that circuit courts would review within-guideline sentences with a bit more rigor after Rita.  But today's Eighth Circuit ruling in US v. Otterson, No. 06-3555 (8th Cir. Nov. 7, 2007) (available here), reveals yet again that some circuits view any within-guideline sentence as essentially per se reasonable.

In Otterson, the defendant was sentenced to just under 20 years' imprisonment after pleading guilty to sending child porn to an undercover officer posing as a thirteen-year-old girl.  At sentencing,

Otterson emphasized the fact that he came from a troubled home, he was the victim of sexual abuse, his father sexually abused his sisters, and his mother was committed for mental health issues while Otterson was still a minor.  He discussed his own well-documented history of physical and mental disabilities, including the fact that he suffered from Bell’s palsy which, together with other conditions, Otterson claimed made social contact difficult and ensured he lived essentially as a hermit.  Finally, he admitted that he had been using drugs at the time of the offense.

Otterson argued primarily that his social history and physical and mental infirmities provided justification for a lower sentence.  He also argued that because he did not actually produce child pornography or physically touch any children related to the present offense, his sentence should not be at the top of the Guidelines range.  Finally, he argued that his criminal history was overstated given his characterization of his prior property offenses as minor and his light sentence on the Missouri sex crime charge.

In response, "the district court imposed the sentence of 235 months [the top of the 188-235 guideline range] to be followed by supervised relief [sic] for life." To justify this outcome,

the district court specifically stated its view as to the severity of the offense, referenced the sadistic and masochistic nature of the materials, and referenced Otterson’s online discussions with the undercover officer who posed as a thirteen-year-old girl.  The district court stated the sentence was appropriate “to address the sentencing objectives of just punishment, general deterrence, and incapacitation.”  The district court did not expressly address other factors under 18 U.S.C. § 3553(a) or discuss the issues Otterson raised as mitigating factors.

On this record, the Eighth Circuit panel rejects the defendant's reasonableness challenge.  It asserts simply that all the mitigating issues raised by Otterson "were clearly presented to the court in the PSR and at the sentencing hearing and are accounted for in the undisputed Guidelines range." 

As an initial matter, I do not quite understand the basis for the panel's assertion that Otterson's mental and physical condition and his social history "are accounted for" in the Guideline range.  The guidelines do not provide any mitigating adjustments for any of these factors.  Though a judge might reach a reasoned conclusion not to reduce a sentence based on these factors under § 3553(a), Rita stresses that, even when giving a guideline sentence, a judge should "explain why he has rejected those arguments" put forward by defendants for a different sentence.  The district court's silence in this case does not seem to me to be an adequate explanation in light of Rita.

Moreover, and perhaps even more disturbing, neither the district court or the Eighth Circuit panel explained why they view as "sufficient but not greater than necessary" for Otterson a prison sentence of 235 months (at the top of the applicable guideline range), instead of a sentence of, say, 188 months (at the bottom of the range).  Despite making numerous non-frivolous mitigating argument, Otterson was given four more years in prison than the (presumptively reasonable) guideline range demands, and it is hard for him or anyone else to understand exactly why.

November 7, 2007 at 01:52 PM | Permalink


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The goal is to rid the Internet of child porn at least as much as possible in the United States. That is a worthy goal but it is clear these laws are not accomplishing it. How many millions of these images are there? A much more effective means of accomplishing this goal is cooperation. As discussed some time ago, a computer repair person who finds child porn images on a computer could be guilty of tampering with evidence if he/she removes them or suggests they be deleted. Imagine if drug users were arrested for flushing drugs down the toilet if they wanted to quit using them. That happens every day and most people would think that is a good first step.

We need a more rational approach and that could be a strong and loud government campaign on potential penalties and on how to rid one's computer of these images so they are no longer recognizable as images and therefore not transferable over the Internet any longer. I'm suggesting a sort of amnesty for a period of time to give people who possess these images a chance to flush them or, if they already flushed them (with something like a disk cleaner) then as long as there are not any viewable images there should not be grounds for an arrest.

If every time an image is viewed a child is harmed the obvious solution is to destroy the images as much as possible. That should be the government's ultimate goal. If the goal is the destruction of these images, that is common sense. If it is more power to government using more or less secrete evidence, then do as they are doing.

In the mean time, a recent California district court decision may help in other states. From CCAP resources:

Case Name: People v. Hertzig, District: 3 DCA , Case #: C053674
Opinion Date: 10/24/2007 , DAR #: 16085
Case Holding:
Simultaneous possession of multiple images of child pornography constitutes only one violation of Penal Code section 311.11 (possession child pornography). Appellant was convicted of ten counts of violating section 311.11 as a result of his possession of a laptop computer with 30 different pornographic videos involving children. On appeal, he argued that this constituted but one crime. Agreeing with appellant, the court analyzed this issue by relying on authority from other types of possession cases, i.e. simultaneous possession of blank checks (People v. Bowie (1977) 72 Cal.App.3d 143; weapons People v. Puppilo (1929) 100 Cal.App. 559 and People v. Rowland (1999) 75 Cal.App.4th 61; drugs in prison People v. Rouser (1997) 59 Cal.App.4th 1065), and held that there was only one violation and reversed nine of the ten multiple convictions.

Posted by: George | Nov 7, 2007 3:23:07 PM

Correction... secrete=secret, of course, meaning we have to take the government's word for the child porn. Given the plea bargain leverage on the side of the government, a misrepresentation of how horrendous the porn is, and it very well could be, gives the government a secret advantage because not even the media can view the porn and determine if it is as claimed.

In over 10 years on the Internet, I've never seen any child porn, not even once, and so have to take the government's word for it. Is there any other crime that so lacks public scrutiny in open court?

Posted by: George | Nov 7, 2007 3:47:26 PM

George, That is a very good point, the public is being robbed of the ability to judge for itself what is pr0n or not.

Obviously if this case went to a jury, the jury could view the pictures, but that doesn’t really aid in giving effect to the 1st amendment. And, it seems that the government likes it that way.

As to the rest of your argument, are you aware that 2252A(d) does provide some kind of safe harbor:

(d) Affirmative Defense.— It shall be an affirmative defense to a charge of violating subsection (a)(5) that the defendant—
(1) possessed less than three images of child pornography; and
(2) promptly and in good faith, and without retaining or allowing any person, other than a law enforcement agency, to access any image or copy thereof—
(A) took reasonable steps to destroy each such image; or
(B) reported the matter to a law enforcement agency and afforded that agency access to each such image.

Posted by: S.cotus | Nov 7, 2007 4:05:12 PM

Thanks, S.cotus, no, I wasn't aware of that, which is another good reason for the government to make the laws more widely known.

The problem is "promptly and in good faith." What if someone has a collection and wants to get rid of it? Shouldn't the law encourage that? If the law does not encourage that, then the law encourages harming a child with every viewing.

I think most people would be receptive to that kind of message and would eagerly help in the destruction of child porn if they knew how. The laws now are just driving it all underground.

Posted by: George | Nov 7, 2007 4:40:25 PM

When will pedophiles catch on to the fact that they should go and actually rape/molest a child rather than download/share/possess pictures of someone else doing it. They'll get a lesser sentence.

Posted by: bruce | Nov 8, 2007 4:07:36 AM

Bruce, there is a much large class of people that views CP, then actually molests children. Most molestation is prosecuted by the states, and there is no particular evidence that sentences are more lenient.

Posted by: S.cotus | Nov 8, 2007 8:42:39 AM

Except, of course, in AZ, Scotus, where the mandatory minimum for possession is ten years, and each possession charge (for a single image) runs consecutively. Perhaps molestation sentences are not more lenient, but it is difficult to imagine them being any more harsh than an effective life sentence.

What I find disturbing is the Eighth Circuit's total abdication of its role in reviewing sentences. As Prof. Berman points out, the guidelines do not incorporate mental and physical condition or social history as mitigating factors, but surely these fit within the sentencing factors outlined in § 3553(a)?
Has the Eighth Circuit ever vacated a within-guidelines sentence? I think the presumption they apply is impossible to rebut, which is decidedly not the holding of Rita.

Posted by: Alec | Nov 8, 2007 2:39:14 PM

What facts did the govt allege in the indictment which were proven beyond a reasonable doubt to a jury and the jury convicted thereon did the court use to enhance this sentence? Jones, Apprendi, Blakely et al. In the pretiral investigation report what facts were hearsay and subject to the confrontation clause under Crawford?
Thumb your nose at Jusice Scalia and the champions of the Sixth Amendment. If the facts in the PSR were not charged in the Indictment then the district court cannot sentence on those facts. Jones, Apprendi, Blakely et al.

There is a huge disconnect between the law of the land and the law of the streets in the Circuits.

Posted by: M. P. Bastian | Nov 8, 2007 5:33:08 PM

In many states one would receive a 10-20 year sentence, at the most, for sexual molestation of a child (obviously more for raping to the brink of death a 3 month old baby, I'm just talking about run-of-the-mill molestation). I've never seen a kiddie porn picture, nor would I want to, but I gather that most are merely pictures of young children, nude, in sexual poses.

If you got a 10 year old child, told him/her to take his/her clothes off and "strike a pose" and take pictures, and you were caught for the act (not for the pictures), you would not serve a fraction of the time people are serving for possessing a few of the pictures you had taken. That's just asinine.

While I find kiddie porn disgusting, I don't think it should be illegal. A picture simply cannot be illegal to possess in America. No picture of any other crime (i.e. a picture of a murdered body, a picture of a growing marijuana plant, a picture of someone smoking crack, a picture of someone robbing a bank, etc) is illegal to possess. Why is kiddie porn any different?

Posted by: bruce | Nov 8, 2007 10:31:02 PM

defendant: It's interesting in these cases where a person is being charged of a no-hands on (cp on computer only) crime, completely denies it, but is still being tried as guilty. In commonwealth of V. v Kromer, appeals, 2005, there was no proof he downloaded the images, just that they were on his pc, so he must have been in control. There's several cases like this, like mine, where we adamantly deny these charges, we're parents with well adjusted children, well educated, good job (until this happens and then it all falls apart), who are confused by this. I've read thousands of cases now (with a terrible headache), of people who view cp, but also engage in acts with children or admit to their cp for a reduced charge. In Oregon, if you're found to have 100 images, it's about one thousand years. There's no ceiling cap required. So, most people plead guilty. My current dilemma is: Since the pedophiles and predators out there now know they'll go to prison for a thousand years for this, doesn't it make sense for them to go online and for free, learn how to access computers and save themselves the danger? They can use our pc's, without our knowledge, (if you don't know it's there - why would you be looking for it), even use our web browsers, picture viewing programs, whatever, and be safe because they prosecution doesn't have to prove 'I' downloaded it, or that I even viewed it. They have but to prove it exists, even in deleted sectors, and that it's more reasonable than not it was me. Yes, this is preponderance of evidence, not beyond reasonable doubt - but it's being done. Why? The courts say it's not permissable for the defense to use negative proof - you can't convict me of this crime because you can't prove I did it. That would go again jurisprudence where negative proof is not permissable. However, the prosecution's evidence is - it must be you who did it, because you can't prove you didn't. Isn't that the same thing, just on the opposite end of the spectrum? Therein lies the bias and fallacy. It's a political climate of warfare, the cops who bust the most people get grants in the sum of $300k, upping their wages, and so they play hungry hungry hippo with out lives. Of course, if you have $30k or so, you can probably fight it, throwing most of the evidence out of court (which is what a lot of people do). You can't fight it if you have a pub defender who's never even handled cybercrimes before and wants to wait and see what happens at trial before doing anything, because he's not sure what to do. Yeah - ever try getting a new public defender? Not gonna happen. So, an innocent boy sits with a strange family and his emotional well being declines, an innocent man who's lost everything waits for a conviction, wondering if there's going to be some miracle, justice-fairy dust sprinkled on his head, because that's what it's gonna take, and the rest of the world dililberates the idea that perhaps the laws are being incorrectly applied and the evidence is being properly implemented. It'll be too late for the falsely accused by the time these debates are over. No, no plea of guilt to reduce the charges. Like many others, I'd rather die in prison, holding to my convictions, than give the DA anymore fuel to go out and hurt another, good parent, and another, innocent child. Oh - and btw - I HATE child porn, have turned it in repeatedly, have expressed concerns on forums where they hade closely-resembling images asking them to remove it, no criminal history, no deviant background, have passed a polygraph - and to make it funnier, have a disability that flattens me if I get emotional (excited, happy, aroused, etc.). So - viewing porn because a painstaking endeavor. Yeah - I visited adult porn, but I also draw, and am dang good at it. I even have loads of cartoon and anime images, because I draw. In fact, that was the majority of what I had for 'people,' or animals, otherwise I had cars, robots, airplanes, you name it. But, character doesn't matter in these cases either *sigh*. Too bad being a good parent with a great kid doesn't count for anything these days (especially a parent who has had consistent access to his son's female friends, been entrusted to protect them and has done nothing short of acting with responsibility and care over each one).

Posted by: cyber | Dec 8, 2007 8:11:37 PM

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