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May 11, 2010
Major reasonableness ruling from Second Circuit in child porn downloading case
The Second Circuit handed down this morning a must-read panel opinion in US v. Dorvee, No. 09-0648 (2d Cir. May 11, 2010) (available here), which a helpful reader described to me as "arguably the most significant one decided by any lower federal court since Booker." I am not sure I think the the Dorvee ruling is quite that huge, in part because the "child porn downloading" context may limit its broader significance within and outside the Second Circuit. Nevertheless, as these passages from the start and end of the opinion highlight, Dorvee is very important for lots and lots of reasons:Justin K. Dorvee pled guilty to one count of distribution of child pornography in violation of 18 U.S.C. § 2252A(a)(2)(A). He was sentenced by the United States District Court for the Northern District of New York (McAvoy, J.) to the statutory maximum of 240 months, less 194 days for time served for a related state sentence. He challenges both the procedural and substantive reasonableness of his sentence. Our review of the record indicates that the district court may have improperly calculated Dorvee’s Guidelines range which, we conclude, constitutes procedural error. We also conclude that the sentence imposed on Dorvee is substantively unreasonable. We therefore vacate the judgment and remand to the district court for resentencing....
District judges are encouraged to take seriously the broad discretion they possess in fashioning sentences under § 2G2.2 – ones that can range from non-custodial sentences to the statutory maximum – bearing in mind that they are dealing with an eccentric Guideline of highly unusual provenance which, unless carefully applied, can easily generate unreasonable results. While we recognize that enforcing federal prohibitions on child pornography is of the utmost importance, it would be manifestly unjust to let Dorvee’s sentence stand. We conclude that Dorvee’s sentence was substantively unreasonable and, accordingly, must be revisited by the district court on remand.
Once I have a chance to read the full Dorvee opinion closely, I will have a lot more to say about its likely import and impact. For now, it is already interesting to speculate whether the Government might be moved to seek en banc or even cert review of this ruling.
May 11, 2010 at 11:27 AM | Permalink
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Comments
I have very mixed feelings about this ruling. On one hand it's a pleasure to see a court of appeals take it's duty to evaluate the substantive reasonableness of a sentence head on and without the quavering you see in places like the 6th Circuit. On the other hand, given how infrequently this type of courage is displayed, I can't help but wonder if Doug is correct and this ruling will be overturned. As a matter of strategy, I'd have preferred courts to have established a deeper baseline in less controversial areas of the law before tackling the child pron context. But here we are.
Posted by: Daniel | May 11, 2010 11:42:10 AM
Note that Judge Cabranes signed on to the opinion. That's a pretty good sign that the case won't go en banc.
Posted by: District Court Clerk | May 11, 2010 12:16:48 PM
The Second Circuit goes en banc less often than the Supremes grant cert.
Posted by: desuetude | May 11, 2010 12:24:17 PM
I thought the procedural analysis was strained and obviously written in search of way to remand the case; the substantive portion was bold, but plausible.
Posted by: Jay | May 11, 2010 1:14:38 PM
This is a very big ruling. Several points are worth highlighting:
1) In discussing its procedural ruling, the Circuit relaxed plain-error review because the error related only to sentencing. (Slip at 8). This is appropriate, but not followed by all Circuits.
2) The Court calls a sentence where a Guideline-approved departure was given "a within-Guideline sentence." (Slip at 11). I believe there is a Circuit-split on this issue as well.
3) I don't think the procedural analysis was "strained" at all. The dist. ct. thought a below-GL sentence was warranted, it thought it was imposing a below-GL sentence, but it erred in believing what the guideline range was.
4) The substantive error part of the opinion is what makes this a TRULY IMPORTANT opinion. The Court correctly finds that there are "serious flaws in USSG 2G2.2" (Slip at 13) and then details why 2G2.2 is not entitled to deference. (Slip at 17-21). This opinion is nothing short of an appellate court adopting the Child Porn Deconstruction argument of Troy Stabenow as, in part, the basis for finding a within-Guideline 2G2.2 sentences to be substantively unreasonable. One of the most illuminating lines is the Court's finding that 2G2.2 "is fundamentally incompatible with 3553(a)." (Slip at 19).
5) The panel's use of agency/regulatory law is illuminating. (Slip at 20-21). It greatly expands upon the justification, first established in Kimbrough, that a dist. ct. should feel free to disagree with guidelines that are not the result of USSC's specialized experience.
6) The 2d Cir. does not presume GL sentences to be reasonable. (Slip at 14). Could this aspect of 2d Cir. law limit the holding's impact, insomuch as to Circuit's that do employ such a presumption? I would argue that if a Circuit does presume GL sentences as reasonable, this case is the perfect illustration of why they should also take one of two routes: a) evidence that the GL "do[es] not exemplify the Commission's exercise of its characteristic institutional role" (see Slip at 21 (quoting Kimbrough)) is enough to rebut that presumption, or b) the presumption does not apply in such cases.
7) I do not believe that the “ ‘child porn downloading’ context” of this case should “limit its broader significance.” This reasoning of this case is applicable to any guideline (or enhancement) that "do[es] not exemplify the Commission's exercise of its characteristic institutional role." (Slip at 21 (quoting Kimbrough)). This is most apparent in 2G2.2 (and, of course, the crack Guideline), but it’s also true about many other guidelines.
7a) On this point, it is worth mentioning that the panel did say 2G2.2 “is fundamentally different from most.” This may be because the Commission has “openly opposed” certain amendments to the guideline. (Slip at 16-17).
8) I have been a long-time advocate on this blog that post-Rita/Gall substantive reasonableness should entail one questions: does the record support the sentence. I have also maintained that such a standard is not a rubber-stamp of district court opinions. This case, once again, illustrates both points. (See Slip at 14-15). Further, I’d note that even under such an approach to substantive reasonableness, an appellate court is justified in examining the genesis of a guideline, as this Court did. Whether a GL sentence is supported by the record necessarily involves an inquiry into the Commission’s rationale for the GL and its enhancement, and whether this particular case furthers that rationale or not.
Posted by: DEJ | May 11, 2010 4:14:50 PM
"I don't think the procedural analysis was "strained" at all. The dist. ct. thought a below-GL sentence was warranted, it thought it was imposing a below-GL sentence, but it erred in believing what the guideline range was."
Oh, come on. The district court gave no indication it thought the Defendant was somehow entitled to leniency in the form of a below guidelines sentence. It at most committed a slip of the tongue in saying that he would have to get a below GL sentence because the statutory maximum was less than the guidelines range. The appellate court seized on this being technically wrong, since the GL range becomes the stat max. The PSR stated things correctly, and the judge gave no indication he was somehow disagreeing with the PSR about the GL range. The procedural finding is a clever way to decrease the likelihood of SC review--it makes the case a poor cert vehicle at this stage.
Substantively, it just seems like a bizarre case to make the point. This Defendant was doing his best to meet real underage boys online, and had a massive c.p. collection. He was convicted of distribution, not possession. In its haste to play politics, the 2d Cir. decision essentially ignores the facts of the case in favor of (as you point out) cut-and-pasting without attribution an article by a federal defender that made the rounds last year sometime. Rereading, the most absurd part of the opinion is when it faults the district court for not explaining what evidence there was that this defendant would actually commit contact offenses against children -- when the whole reason he was caught was because he actually traveled to meet a 14 year old boy.
Posted by: Jay | May 11, 2010 4:52:13 PM
I agree with DEJ's 7th point about the broader significance of this ruling, even though the court does say that 2G2.2 is "fundamentally different from most" guidelines. I think this ruling could be particularly important for white collar practioners because the fraud guideline (2B1.1), like 2G2.2, has been amended to make the guideline more punitive in response to pressure from Congress to jack up the guidelines, rather than from the exercise of the USSC's institutional role, i.e. basing the Guidelines on empirical research and sentencing data. It will be interesting to see what type of fall out this ruling produces.
Posted by: Steve Kress | May 11, 2010 8:34:06 PM
