Eleventh Circuit affirms below-guideline sentence in "utterly gruesome" sex offense case

Late yesterday the Eleventh Circuit handed down a notable opinion in US v. Irey, No. No. 08-10997 (11th Cir. Mar 30, 2009) (available here). The start of the panel opinion provides a sketch of the particulars:

This appeal is about the discretion of a district court to impose a particular sentence. William Irey (“Defendant”) -- age 50 at sentencing -- pleaded guilty to using minors to engage in sexually explicit conduct outside the United States for the purpose of producing visual depictions of such conduct and transporting those images to the United States.  Believing that the sentence imposed on Defendant is too lenient, the government appeals Defendant’s sentence of 210 months’ imprisonment plus a life term of supervised release involving many different restrictions on his liberties.  We affirm the sentence.

While the ruling and majority opinion is itself noteworthy, a brief "special concurrence" by Judge Hill adds an extra layer of intrigue.  Here are snippets from this concurrence:  

I have studied this record and the sentencing transcript and the utterly gruesome details of the conduct involved here. I disagree with the conclusion by the district judge that there should have been a downward departure of any kind in this case.... The defendant acted deliberately, cunningly and with obvious delight. He ruined the lives of at least forty-three children (that we know of) and then published his triumphs on the internet for all the world to see, complete with scurrilous black marker writings tattooed on the nine-year-old girls’ skin.

Had I been given the heavy responsibility of sentencing in this case, my only regret would be that in the halls of Congress, the occupants of that legislative branch place an upward limit on this defendant’s confinement.  I strongly disagree with the district judge’s sentencing in this heinous case, as he moves so far downward from the maximum upper sentencing limit that he nearly reaches the minimum limit.

I am persuaded that the sentencing in this case is not a proper one. However I am more dedicated to my strong belief that district judges “on the firing line” should have free rein to exercise sentencing discretion.  Therefore, I am unwilling to say that the fact that I disagree with the sentence in this case is also sufficient grounds upon which to find abuse.

I reluctantly concur.