More examples of sentencing uncertainty surrounding federal child porn cases

Regular readers may recall some of my recent posts discussing my observations of an extraordinary amount of variation in charging, bargaining and sentencing realities in federal child porn downloading cases.  Two more notable examples came across my desk just today:

In US v. Toothman, No. 07-3729 (8th Cir. Oct. 3, 2008) (available here), a panel rejects an Arkansas defendant's appeal of his within-guidline sentence of more than eight years imprisonment following his plea of guilty to one count of knowing receipt of child pornography.  The defendant complained on appeal about the district court's failure to give him any break for his extraordinary physical impairment and extreme susceptibility to abuse in prison, but the circuit court decided the sentence was reasonableness.

Meanwhile, in the neighboring state of Tennessee, another child porn defendant got a significant break from the guidelines, due in part to the luck of timing according to this local artice headlined "Student gets sentence cut in half; Prior defendant’s record worse, so judge shows mercy."  Here are the details:

A college student turned child pornography viewer saw his sentence cut in half on Thursday, thanks in large part to a bank robber. Adam Joseph Myers, 22, faced a minimum 70-month prison term when he walked into a federal courtroom.  He walked out with 36 months and was even allowed by Senior U.S. District Judge Leon Jordan to self-report to prison, a rarity in the federal judicial system.

Jordan told Myers that he had not only attorneys Donald A. Bosch and Ann Short-Bowers to thank for the judge’s leniency but also bank robber Troy Wayne Davis, who had appeared before Jordan just minutes before Myers’ case was called.  Davis has been running afoul of the law since he was 12 years old. Myers, on the other hand, had a squeaky clean record and college credits under his belt when he was caught downloading child pornography images using the file-sharing program known as Limewire, Jordan said....

Bosch and Short-Bowers successfully argued that Myers never intended to allow others to view the child pornography he downloaded.  “As soon as Mr. Myers began downloading images to his computer, the images could be shared by others,” Jordan noted. “In fact, this is how the (FBI) agent became aware of Mr. Myers. … There is no evidence he intended to share (the images) with anyone.  It was just fortuitous that the agent was online in that narrow window of time.”

But while Jordan painted Myers as a one-time viewer of sadistic scenes of child rape who since has convinced evaluators he poses no threat to children, Morris countered that Myers’ computer showed evidence he had at least twice viewed child pornography.  He also argued that Jordan’s leniency flew in the face of congressional leaders, who purposely changed the law to increase penalties for child pornography crimes. “A (sentencing) variance would and does disregard congressional policy for imposing stiff sentences on possessors of child pornography,” Morris argued.

I guess federal sentencing for child porn, like comedy, is really a matter of timing.