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September 8, 2008

Another sad federal child porn sentence

In prior posts I have noted the challenges judges ae facing with sentencings in child porn downloading cases.  In a recent Seventh Circuit decision, US v. Allday, No. 07-2698  (7th Cir. Sept. 5, 2008) (available here), a panel affirms a district court's decision to deal with these challenges by giving a within-guideline sentence.  The start of the opinion provides these factual basics:

A devoted and by all accounts loving father and grandfather, Gilbert Allday is hardly a man one would expect to find sentenced to eight years in federal prison for receiving child pornography.  Expectations aside, in January 2004 Allday began looking at pornographic web sites while surfing the Internet.  From there, Allday began visiting web sites depicting minor children engaged in sexual acts.  By August 2005, Allday had amassed some 541 still images and 82 movie files depicting minors engaged in sexually explicit conduct.

Allday pleaded guilty without the benefit of a plea agreement to violating 18 U.S.C. § 2252(a)(2), which prohibits the knowing receipt of any image of a minor engaging in sexual conduct that has been transported in interstate commerce and “the producing of such visual depiction involves the use of a minor engaging in sexually explicit conduct.”  That statute carries a five-year mandatory minimum term of imprisonment. 18 U.S.C. § 2252(b)(2).  Before sentencing, Allday submitted a sentencing memorandum in which he argued that he should be sentenced to the five-year mandatory minimum.  He emphasized the fact that he was 64 years old and suffering from a number of health problems, including sleep apnea that required nightly monitoring with a machine, a heart condition, and diabetes.  He also argued that his stablework history (41 years as a Union laborer), military service, and first-time offender status all militated in favor of a five-year sentence.  Finally, he submitted a number of letters from his step-children and grandchildren, all attesting to the fact that he was a loving and supportive father and grandfather.  The district court instead sentenced Allday to 97 months imprisonment, the bottom of the undisputed 97 to 121-month Guideline range.

Upon first reading of these facts, I wondered why the district court believed a five-year prison term was not sufficient to serve the 3553(a)(2) purposes of punishment and why the defendant did not consider appealing the substantive reasonableness of this decision.  A notable footnote at the end of the Seventh Circuit opinion indicated that the defendant only challenged the sentence's procedural reasonableness, and the panel makes clear that it had "no occasion to consider the separate issue of whether his 97-month sentence is in fact reasonable."  I cannot help but this that this footnote hints that the circuit might have been prepared to question the substantive reasonableness of Allday's sentence had he raised the issue.

Upon second reading of these facts, I also wondered why the defendant pleaded guilty without the benefit of a plea agreement.  In lots of similar downloading cases, there is often a plea agreement in place and prosecutors are even sometimes willing to forgo a plea to those charges that require a 5-year mandatory prison term.  I can only speculate that, for whatever reason, the prosecutors in this case decided this particular ill, elderly veteran needed to be kept away from society for as long as possible for the way he misused his computer.

Some related child porn sentencing posts:

September 8, 2008 at 03:40 PM | Permalink


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Please name me a case since Gall where the courts have struck down a guidelines sentence for a sex offender because it was substantially unreasonable. While I agree that courts should be willing to do this, I doubt that it's going to happen. Carter is an excellent example for that; it wasn't even a within guidlines sentence and the court quavered like a bowl of jelly.

Despite the fact that Gall plainly invited...nay begged... courts to strike down sentences based on substantial reasonableness grounds, I doubt it's going to happen. Why? Because striking down a sentence, especially a within guidelines sentence, opens the court to a level of second-guessing and criticism that is not present when it strikes down a sentence on procedural grounds; that level of criticism is sure to be increased when dealing with a sex offender.

Posted by: Daniel | Sep 8, 2008 5:18:05 PM

I'd like to see someone look closely at "Computer Aided Solicitation of a Minor" -- My son is in prison right now because there IS no defense for a case like that in Louisiana---they gotcha and gotchya good. There is NO getting a lower "sentence". With mandatory minimums, NO defense, you do your darndest to not get 10 years in prison per charge and my son was charged with 5 felony counts of that with a friend he knew online for 2-3 years. Doesn't matter she was doing the exact same thing with other boys, doesn't matter if he never met her, doesn't matter if he never planned on meeting her. Doesn't matter if he told her "I wish you were legal" ... is there ANY help out there for him? He was 22, the girl was 15.

Posted by: Lisa | Sep 8, 2008 6:01:59 PM

Doug and the other posters are unbelievable. Why is this case sad? He had EIGHTY FOUR movie files!!! He wasn't "accidently" looking at child pornography, he was a collector and THE LAW IS THE LAW. People who argue for lesser penalties for possession of child pornography are forgetting the harm that is done to the children. If there wasn't a market for people possessing EIGHTY FOUR movies, less kids would be exploited. People like Doug and the posters make me physically ill!!! What if it was your children being videotaped and looked at by these "poor defendants?" Would your attitude change? Seriously, you all need help!

Posted by: | Sep 9, 2008 7:36:08 AM

Hello Professor,
In case you or anyone else is interested, the following book offers, inter alia, a short, but excellent discussion on how the pornography industry takes advantage of the plasticity of the human brain and "re-programs" the brains of some individuals who view Internet pornography: Norman Doidge, M.D., The Brain That Changes Itself: Stories of Personal Triumph From the Frontier of Brain Science 102-12 (Viking/Penguin Group 2007). In sum, the aforementioned section of the book notes how the pornography industry works (pardon the bad pun, but) hand-in-hand with the viewer of Internet pornography to take advantage of viewer's eventual boredom with one type of image and then modify, create, and maximize interests in other increasingly bizarre images. In the case of those who eventually download child pornography, illegal images. Other areas of this excellent book that are not related to pornography –the book addresses the important issue of plasticity of the brain and does not focus or even address child pornography– bring examples of psychiatry and "mental training" that might be used, by analogy, to argue that the brains of these "clickers" (people who download child pornography, but who have no history of physically "interacting" with the objects of their masturbatory fantasies) may be re-programmed to not find sexual pleasure in viewing these vile and harmful images. The book is full of "five dollar words", but it is very interesting.

Posted by: Doug | Sep 9, 2008 10:26:10 AM

"For the way he misused his computer." Come on Prof. I can buy your argument that 60 months would satisfy 3553(a). But describing the crime like that is ridiculous.

Posted by: lawdevil | Sep 9, 2008 11:34:28 AM

I am not defending child porn but I despise the illogic that drives it's mindless attackers.

"If there wasn't a market for people possessing EIGHTY FOUR movies, less kids would be exploited."

This is repeated over and over again and yet in all my years following this topic I have not seen a single study that has backed up this claim. All the academic literature on the subject indicates that this claim is false on it's face, yet it keeps getting repeated again and again because the anti-porn crusaders need something to justify their hate.

Posted by: Daniel | Sep 9, 2008 12:17:46 PM

"People like Doug and the posters make me physically ill!!!"

Take some Prozac. That ought to fix you up. The government could accomplish the same goal if misdemeanor charges were brought instead and the government could prosecute 10 times the number of defendants with the same amount of resources, maybe more.

Again, we don't know if these images and movies were from the 70s when child porn was legal to make in some countries and legal to possess in the U.S.. Nor do we know if anyone is actually making millions by selling it. A multi-billion dollar industry?

And saying those who question any of the above is "forgetting the harm that is done to the children" would be legitimate if we knew the harm that is done to the children with each viewing of child porn. If most or all of it is from the 70s, let's ask the now adults how much harm it does them and if it is enough to warrant 9 years for an offender like Allday. It would serve justice to know if they agree with the sentence since with victim impact statements the victim can ask for severity or leniency.

But what is really wrong with your argument is this sentence: "What if it was your children being videotaped and looked at by these "poor defendants?"

It attempts to punish Allday for the production of the movies though they were likely produced legally when made. If Allday had produced child porn a severe sentence would be warranted, but misdemeanor charges for possession and a very long year in the county jail would accomplish the government's goals.

The drug war is Eastasia and the porn war is Eurasia. These domestic wars are the bread and butter of Oceania and the government doesn't want to win or lose them, but wants them to rage on to justify control of the proles. If the government turned it over to the CDC the CDC could probably wipe out almost all child porn like it does food infected with E. Coli. The CDC could come up with a plan that cures infected computers and develop a vaccine to help prevent infection. Just offering for free a disk cleaning program that wipes out and makes unviewable any child porn on a computer could get rid of an untold amount of child porn, maybe as much as 90% of it voluntarily if it were done right. The law now discourages that because 1) it would be destroying evidence, against the law 2) just asking how to do that could lead to arrest. Imagine someone walking into the police station and saying, "I have child porn I've been collecting on my computer. It's wrong. How can I get rid of it?" Better and more effective to treat it like the disease it is and make it more like walking into a doctor's office. The CDC could then adopt regulations that actually work and they may include incarceration when effective, possibly for second and third time offenders. The CDC could be smart on this crime and people would listen because they know the CDC is genuinely concerned with the health of the nation and they trust it. The danger would be the CDC evolving into a punitive body something like psychology has.

Posted by: George | Sep 9, 2008 1:36:01 PM

Prosecution for looking at something is just a hop away form prosecution for thinking about something. Well, we're almost there. If we can develop technology to discern thoughts, no doubt we will begin to legislate them.

I know that's quite cynical, but when I see what has been done over the last 50 years, I'm not very optimistic. Entrapment broadly used yet narrowly defined and parsed, CIs hoping for exoneration or sentence reduction, witnessed testifying under threat of indictment, forfeiture and fines as prime motivation for law enforcement.

Perhaps we'll have a come to jesus seminal moment when we regain our sanity, but in the mean time we must be satisfied with what we've become.

Posted by: beth curtis | Sep 9, 2008 10:23:41 PM

Prosecutors don't care about grandpa one way or the other. They want the highest possible sentence in every case not involving a plea bargain because that increases their credibility in other cases at the bargaining table.

They also are working hard to push the position, notwithstanding Gall, that the guidelines should be deviated from only in truly exceptional circumstances and never as a matter of right, for essentially the same reasons.

Posted by: ohwilleke | Sep 10, 2008 12:51:18 AM

Assuming the Seventh Circuit was inclined to address the substantive reasonableness of the sentence, it seems a real stretch to think that they could find that the district court abused its discretion under the explicitly deferential standard described in Gall. Judge Colloton's concurrence in Shy is right on the money in terms of how limited the role of appellate courts have become in the post-Booker world. Under Booker/Gall a lot of readers here have been able to celebrate sentences significantly below the Guidelines range, but the price of those lower sentences is that you have little to no recourse when a sentencing judge imposes a sentence you believe to be excessive.

Posted by: Proseutorial Indiscretion | Sep 10, 2008 11:17:13 AM

“People like Doug and the posters make me physically ill!!!”

Okay, this is funny. If there are ideas that you do not like, you need to rebut them point by point. With citations.

If you can’t handle an idea then you have no business reading it. In fact, you have no business on the internet. There is a nasty world out there, and a lot of ideas that you might not like. However, because your upbringing and education did not prepare you for actual discussion, you are better off sitting in a closed room.

See, we can’t even discuss the merits of the crime or punishment with people like you. You might get sick.

Beth, please read the statutes before you comment on them. The statute does not criminalize viewing. The defendant did not raise the defense of entrapment. Seriously, what planet are you on.

And the lay people wonder why we don’t let them run the country.

ohwilleke, “They want the highest possible sentence in every case not involving a plea bargain because that increases their credibility in other cases at the bargaining table.” I heard tell that the defense bar wants the lowest possible sentence in cases no involving a plea bargain, because that increases their credibility at the bargaining table. Just a rumor.

Posted by: S.cotus | Sep 10, 2008 12:12:51 PM

Yes I understand your concern. It was my own personal rant, and was seriously off the subject. I know the statute doesn't criminalize viewing and he didn't raise the defense of entrapment (as if he could). I'm sure some lay people wonder how the country came to be run by lawyers. All in all, it has become a bit mucked up.

By the way, I miss the crystal clear, laser focused opinion of a Federal Prosecutor. I miss Bill Otis

Posted by: beth curtis | Sep 10, 2008 1:21:00 PM

Interesting! I’ll have to see what I have for you. I’ll be back with a comment or two hopefully

Posted by: Jimmy@Free-Porn-Movies | Oct 25, 2008 12:15:02 AM

I know I am outside of your area but I was hoping I could get your advice.

I am very worried about my case. I have been assigned a Public Defender that is either too busy to return my calls or isn't worried about my case since it does not come before a Grand Jury until February. And due to the Sheriff calling my employer I now have lost my job. I was offered to resign or be terminated. I mistakenly took the resignation hoping for the best. And in the meantime I can't get a good job because of the arrest showing up on my background check. I am being charged with 5 counts of internet pornography with minors.

Here's the story, my daughter had taken a picture of her naked upper body and sent it to her boyfriend on her phone and once my X-wife and I found out I spoke with her since she was with me at the time of the discovery. I also scowered the internet trying to find pictures of other girls that had done the same thing to show her that boys do NOT keep pictures like that to themselves since she wouldn't believe otherwise. Running across a lot of little girl "modeling" websites and nothing like I was looking for, I turned to the tool uTorrent to find something for use in my example. I used several different words for my search and finally found a large torrent containing several thousand files. I downloaded it and looked through the pics. Not finding anything I wanted to show my daughter I deleted all of the files and gave up the search. Now I know none of the pictures that were downloaded were sexually explicit such as sex acts so they are very mild in nature but many had minors nonetheless, 150 from what the Sheriff states was recovered. My wife was trying to find a website she had visited and ran across my searches while I was at work. She freaked out and called the Sheriff who in turn arrived at my house at the same time as I was coming home. I had no clue what was going on. I assisted the sheriff in looking through my browser history and he took my CPU for forensics. I eventually was charged with the aforementioned 5 counts.

My wife now regrets having called and apologized for doing so without talking to me. She was worried that there is some agency watching for files being downloaded and that an impending raid would take our 4 boys from us. So she thought she was protecting her family. Nonetheless we are screwed.

I have not seen the discovery yet as my lawyer said the forensics expert had a hurt neck a month ago when he filed the prelim hearing and since that time I haven't heard from my lawyer with an update. Even after leaving several messages for him to call me.

The sheriff had told my wife that I had been up to this for some time since some of the pictures they found were out of circulation. Well since I hadn't even had the internet for more than 6 months at the time that couldn't be true. Obviously they are not out of circulation. And I doubt they know what a Torrent is or that they even care. Just the simple fact that the images were there even though deleted seems to be all that matters.

My lawyers name is Trey Norman and he is the President of the Autauga County Bar Association. His email is [email protected] even though he has not returned even one email I wonder if he even gave me the correct email address.

I can't think of anything else to tell you except I cooperated fully with the investigation and told the same story during the investigation.

Any advice you can offer me would be so greatly appreciated.

Posted by: Joe Garrison | Nov 13, 2008 5:13:42 AM

To the last poster in this forum. I don't come from the US. I was a victim of a wrongful arrest and malicious prosecution for allegedly downloading "Child Exploitation Material", and when the matter was eventually taken to court I won my case with in 30 minutes of court time! Yep, the police got it horridly wrong. The files that my arrest was based on consisted of legitimate adult pornography, produced in the US complete with USA certification for ages and so on. No appology, no restitution, no investigation for the stolen internet service (someone had I belive tapped into my wireless system). 10 months of pure hell, being named in the paper, loss of job, child safety involvement and bullying my wife into seeking sole custody of our child! The repurcussions of a fale accusation are huge. I contemplated and planned my suicide at least 8 times. The police and the Department of Public Prosecutions tried every dirty trick under the sun, including not providing access to the evidence so it could be refuted.

THIS IS THE REALITY OUT THERE. For all you folks engaging in accademic argument, DON'T forget the negative outcomes for people like me who have been wrongfully accused and pursued by over-zelous police and prosecutors with a point to prove by 'prosecuting in stealth mode'.

My human rights were violated in so many ways I can't even begin to tell you what that feels like.

Posted by: KK | Nov 29, 2008 7:26:11 AM

I too am tireing of the notion that those who passively sit on their computers and find child porn are "suporting" the child porn industry, what industry could survive when people do not pay for it? I tell you what industry, the self produced, self published and self advertised porn industry that is all over the net available for men like this. There is most likely not a single victim of child exploitation in this case.
Imagine that the pleasure that these girls get from exhibiting themselves sexually on the internet and now think of all the pain of so many years in prison, I ask you who the hell are the real victims? The world is going insane with all this protect the children crap!
"The state must declare the child to be the most precious treasure of the people. As long as the government is perceived as working for the benefit of the children, the people will happily endure almost any curtailment of liberty and almost any deprivation." - Rabbi Daniel Lapin

The feds actually post URLs on the net enticing people to come look at child porn and then they pass a law with a ten year sentance for merely clicking on the URL!! We need to fight these bastards before they all have us registering as sex offenders for looking at a child more than a fraction of a second. You think this is a joke? Google on the words "visual agression laws new york"

Go to my link above to see alot of material on sex offenders, laws, individual cases and youtube videos

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f they're charged as a minor, it shouldn't stay on their record beyond age 17.

If they're charged as an adult (and yes, this has happened in some cases), it'll be on their record forever. They can basically kiss their life goodbye.

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