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August 17, 2008

Acquitting and downloading some additional USSC priorities

As noted in this prior post, earlier this month the US Sentencing Commission posted here its "Federal Register Notice of proposed priorities and request for public comment."  Though I am pleased to see some of what the USSC is suggesting as priorities, I am disappointed by some notable omissions from the current proposals. 

Specifically, I had heard some rumors that the USSC was going to take a new and focused look at acquitted conduct enhancements.  Perhaps this topic is on the USSC's agenda, but the current list of proposed priorities do not say boo about acquitted conduct.  I often asked, by reporters and others, about how many federal sentencing cases involve acquitted conduct enhancements.  I strongly believe that the Commission should, at the very least, assemble and analyze data on the frequency and impact of acquitted conduct sentencing enhancements.

In addition, I have lately noticed an extraordinary amount of variation in the charging, bargaining and sentencing realities in child porn downloading cases.  (The recent Rausch decision reported here and this local article reporting on another of these sad cases provides a good example of how many judges do not seem to find the extant guidelines to be a good guide in these cases.)  I plan to write directly to the Commission to encourage it to take a very close look at the growing universe of federal child porn prosecutions and sentences.

August 17, 2008 at 11:44 AM | Permalink


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Instead of publishing data that would be informative and useful, or looking at how the guidelines should be revised in response to this data, the Commission proposes an evaluation of the "impact" of Booker and subsequent cases "on the federal sentencing guidelines system." That smacks of the March 2006 report of the Impact of Booker on Federal Sentencing after one year, which essentially served as an advocacy piece for a congressional hearing at a very different time.

The "impact" should be changes in the guidelines, not another dreary account of the number and rate of "guideline" sentences (defined to include government-sponsored non-guideline sentences) versus other, apparently disfavored, sentences, without analysis of why judges "vary" or what changes should follow.

The Commission could look good if it would amend the guidelines so that judges want to use them, but it's still dragging its heels.

Posted by: anon | Aug 17, 2008 12:39:35 PM


Let me publicly thank you for your interest in child porn sentences though I would suggest to you that the variation you have seen is not "recent" but in fact has been going on for a long time. In addition, I would suggest that this variation also occurs in child rape cases. In fact, in the district where I live, on the very day that Kennedy v Louisana came down, a state judge sentenced a man to five years *probation* for conduct that was similar to Kennedy's. While his conduct might not as been as brutal as in Kennedy it involved three children, one as young as five. Yet this extraordinary sentence went by without comment in the local press or by the local bar. Tragic.

Posted by: Daniel | Aug 17, 2008 5:49:08 PM

i went to trial on a misdermeaner cp 8 pic on hard drive and two deleted on floppy were removed with special foresnic tools , it started the feds said i attempted to purchase cp web site but the credit card was denied and the info on the application was wrong but simular to my ph num but not mine address had some numbers same but not mine , none the less i was convicted and senstance 180 day in jail 3 yr probation life time registration , i had a attorney that tried ,i have appealed so far i have all the transcripts did all the leg work but i really need a attorney i know theres somthing here that could help out there ,, the transcripts came back i read them some of are objections missing ,they were important,to us ,, theres more info than i can explain to who ever reading this , i new i was doomed when the judge said she was voting for macain , she thought all porn was ilegal, for me money is the problem , i work but i need sometime or arrangments for payment ,, please help , i feel i did nothing that warrants life time of talking to police , and even when i go there , they just dont for your address ,they interview with questions that are about child molesters question like do you feel the need to repeat questions like that ..

Posted by: fatwally | Nov 22, 2008 9:28:44 PM

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