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February 14, 2008

Eighth Circuit rejects constitutional challenges to long bargained justice

The Eighth Circuit issued a bloodless ruling on Valentine's Day in a case with notable facts in US v. Kling, No. 07-1303 (8th Cir. Feb. 14, 2008) (available here).  Here is how the opinion begins:

Larry Raymond Kling pleaded guilty to one count of child exploitation, in violation of 18 U.S.C. § 2251(a). Prior to pleading guilty, Kling entered into a plea agreement with the government pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C). In his plea agreement, Kling agreed to a sentencing range of 324 to 360 months' imprisonment.  The district court accepted the plea agreement and sentenced Kling to 324 months' imprisonment.  Kling appeals, arguing that a sentence imposed pursuant to a Rule 11(c)(1)(C) plea agreement is illegal and that his sentence is a violation of the Eighth Amendment.  We affirm.

It appears that the defendant, whose age is not mentioned in this opinion, made videotapes and took pictures of himself "engaging in sexual acts with a 15-year-old girl."  The defendant claims he agreed to plead guilty only to avoid a possible life term, and the district judge at sentencing noted "the severity of the sentence recommended by the agreement and expressed an opinion that 'this is the most unjust sentence that I have ever imposed.'"  Unfortunately for Kling, even on Valentine's Day, he gets not love from the circuit court when he complains about his sentence for taking pictures of his forbidden love.

February 14, 2008 at 05:45 PM | Permalink


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It seems like the judge was going out of his way to tell the defendant that, if left up to the court, the court would use its discretion under Booker to give a below-guidelines sentence. Even gave him a chance to withdraw from the plea agreement.

Posted by: bruce | Feb 14, 2008 6:12:05 PM

BOP inmate locater says that Mr. Kling is 42 years old.

Posted by: YesBut | Feb 14, 2008 6:17:12 PM

If accepting the plea would require the judge to give "the most unjust sentence that [he has] ever imposed," then why accept the plea? Contrary to popular belief, there are more interested parties to a plea bargain than the state and the defendant. It is well within the bounds of judging, where the law allows him to use discretion, to actually exercise judgment -- what We the People, through our representatives, have appointed him to do.

The Eighth Circuit's decision is correct, but the district judge should be ashamed.

Posted by: | Feb 14, 2008 9:26:08 PM

"Kling attempts to avoid Cook by arguing that he did not voluntarily enter into the plea agreement; however, this argument fails. Kling contends that he had no choice but to enter into the agreement because his only alternative was to go to trial and face a possible life sentence. He argues that an agreement under these conditions cannot be said to be voluntary. We reject Kling's definition of voluntariness. See United States v. Swick, 262 F.3d 684, 686 (8th Cir. 2001) (rejecting a defendant's argument that "because he was under pressure to accept the plea agreement or be forced to go to trial and face severe consequences, his plea was involuntary")."

Does anyone in practice actually believe this? He was forced to plead guilty and he would have got life or close to it had he withdrawn his plea. We see time and time again how someone gets the shaft if daring to exercise a right a trial. It was apparently an open and shut case against him. Even if she did not want to testify, the prosecution could force her to under threat of prosecution (but that would not be "force, threats, or promises" either). And they still had the tapes anyway.

Even if he pointed a real gun around the room just playing around instead of a camera, 324 months (27 years) MAX would still be too much, let alone life. The trauma of the girl knowing she tortured a man for perhaps the rest of his life likely weighs more heavily on her shoulders than the trauma of the 4 sex encounters, if there was any trauma in them. Imagine the guilt she must feel.

Something needs to be done about prosecutorial fasci-- uh, discretion.

Posted by: George | Feb 14, 2008 10:17:12 PM

George, your powers of mind-reading and fact research are impeccable, as usual.

Here's what we know about the facts:
In January 2006, a police search of Kling's residence uncovered videotapes and
photographs of Kling engaging in sexual acts with a 15-year-old girl. The tapes and
photos reflected at least four different encounters between Kling and the girl.
op. at 2.

We also know that Kling was charged with child exploitation (not rape), that he violated his pretrial release conditions by contacting the girl, and that Judge Bennett thought the resulting sentence was unjust.

Putting aside your idiotic factual inferences and armchair psychology, there's clearly no coercion here. You appear to concede that he's guilty and that he's facing life in prison. Once you accept that, then Kling's ultimate sentence means that he caught a break in exchange for pleading guilty.

It appears that your concern is with the length of sentences generally. That's reasonable, but it's not a legitimate criticism of the Eighth Circuit's reasoning.

Posted by: | Feb 14, 2008 10:52:14 PM

"|" your reading powers are once again impeccable.

I did not criticize the Eight's reasoning. In fact, the court had to rule that way.

I criticized the "prosecutorial fasci-- uh, discretion." That is because lawmakers gave them the power to throw in overcharging, stacked charges, throw-a-way charges and the kitchen sink. Sometimes a defendant, such as in this case, is forced to accept an unjust charge or face an even more unjust charge. When the under the law the only logical plea bargain choice is the lesser of two evils, the law is evil.

Posted by: George | Feb 15, 2008 10:47:51 AM

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