« Two for Tuesday from the Seventh Circuit on sentencing | Main | Do special procedures help preserve the US death penalty? »

August 19, 2008

Fifth Circuit affirms, after Gall GVR, a probation sentence in child porn downloading case

A helpful reader sent along this head's up about an important new ruling released today by the Fifth Circuit:

I thought you'd be interested in the opinion out of the Fifth Circuit in US v. Duhon, No. 05-30387 (5th Cir. Aug. 18, 2008) (available here).

It's another child-porn case.  The defendant had received probation from the district court. The Fifth Circuit had initially reversed. (Your prior coverage is here).  The Supreme Court later vacated and remanded the case in light of Gall. In the newly issued opinion, the Fifth Circuit affirmed the sentence. Whereas the initial Duhon opinion was part of the trend of cases reversing below Guideline sentences, the new opinion shows that Gall has changed the way courts review sentences.  Among other interesting issues the court covers is alternative sentencing and co-defendant sentencing disparity -- both issues this blog has talked about recently.  I thought you and your readers might be interested.

Indeed I am interested, not only in the Fifth Circuit's revised work, but also in reader reactions.

August 19, 2008 at 03:15 PM | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference Fifth Circuit affirms, after Gall GVR, a probation sentence in child porn downloading case:


Well knock me over with feather, the 5th wrote an opinion that I agree with. I was especially pleased to see their reasoning regarding procedural error, which I believe is the correct one. I still would argue that court's should evaluate substantive reasonableness first, and then evaluate procedural error only in light of their analysis of substantial reasonableness of the sentence.

The only thing that bothered me, as I have expressed elsewhere, is that when the court determined the district court's sentence was reasonable in light of other cases, it only looked to one other case. That is a thin reed on which to rest a sentence in these circumstances. It would have been more effective if the court, absent much history in it's circuit, had also looked to what other circuits were doing; or found some other basis altogether.

Posted by: Daniel | Aug 19, 2008 3:52:43 PM

One thing of note -- the Fifth said the judge did not follow its previous rule that when a judge decides to do something prohibited by the guidelines, he must acknowledge the guideline provision prohibiting what he did, here, the provision prohibiting probation for a defendant whoses guideline range is in Zone D. The Fifth indicated it was reconsidering that rule in light of Rita, but it did not need to decide because this was plain error review.

The provision prohibiting probation in Zone D comes in under § 3553(a)(4) (“kinds of sentence . . established [by] the guidelines”).

In Gall, the Court rejected the Eighth Circuit’s conclusion that probation “lies outside the range of choice dictated by the facts of this case” because “§ 3553(a)(3) [“kinds of sentences available”] directs the judge to consider sentences other than imprisonment.” 127 S. Ct. at 602 & n.11.

This isn't mentioned in Duhon, but 3553(a)(3) and this part of Gall are obviously solid authority for the proposition that the judge MUST consider sentences other than prison, even when the guidelines say otherwise.

Posted by: abe | Aug 19, 2008 6:28:38 PM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB