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June 2, 2010

Eleventh Circuit panel reverses ruling that 30-year mandatory AWA sentence for attempted sex offense is unconstitutional

Long-time readers may recall a notable district court opinion in US v. Farley from September 2008 (discussed in this post), which found unconstitutional a mandatory minimum term of 30 years imprisonment for a defendant who travelled across state lines in an effort to engage in sexual activity with a fictious child.  (Some may also recall the interesting twist, discussed in this February 2009 post, that a group of House Republicans filed a brief in the Eleventh Circuit contending that the 30-year mandatory minimum prison sentence was constitutionally sound). 

This afternoon an Eleventh Circuit panel issued this 112-page opinion in Farley, which starts and ends this way: 

In the Fall of 2006, Kelly Farley was a thirty-seven-year old businessman living in Texas with a pregnant wife and five children, ranging in age from one to fourteen. His interest in families was not limited to his own, and his sexual interests extended beyond what our society and its laws will tolerate. Farley is sexually attracted to girls he described as “still innocent, but starting to bud a little,” and he wanted to have sex with a girl who was around nine to eleven years old. Using the internet, he made contact with the mother of a child of that age and set out to persuade her not only to let him have sex with her daughter but also to join him in sexually violating the child.

To reach that goal Farley engaged in a steady stream of chat room conversations, emails, and phone calls over a period of seven months with the mother, leading up to his arrival in Atlanta carrying directions to the place where he planned to rendezvous with her and her eleven-year-old daughter. Farley’s actions led to his arrest, which led to his trial, which led to his conviction and sentence, which led to the government’s appeal of that sentence, which led to Farley’s cross-appeal of both his conviction and sentence, all of which led to this opinion....

We AFFIRM Farley’s convictions on both counts, and his sentence on Count Two.  We REVERSE the district court’s order declaring unconstitutional the application of the mandatory minimum sentence under 18 U.S.C. § 2241(c), VACATE Farley’s sentence on Count One, and REMAND with instructions to impose a sentence no less than that required by § 2241(c).

The discussion of Eigth Amendment law and its application runs roughly the last 20 pages of this long opinion and it relies heavily on the Supreme Court's 1991 Harmelin ruling in the course of deciding that "the thirty-year sentence required by § 2241(c) in light of Farley’s crime does not lead to an inference of gross disproportionality." Here is some notable passages from this discussion:

The crime in Harmelin was possession of 672 grams of cocaine.  The crime here is travel across state lines with intent to sexually violate an underage child.  While it is true that Farley, through no fault of his own, was unable to inflict that harm on an actual victim, the same could be said of Harmelin.  After all, the 672 grams of cocaine he possessed was seized by police before any of it could be further distributed or consumed, thereby preventing harm to society.  See id. at 988, 111 S.Ct. at 2698 (lead opinion)....

The Court stated in Harmelin that the “possession, use, and distribution” of illegal drugs are serious problems affecting the health and welfare of the population, and it dismissed the argument that Harmelin’s crime was nonviolent and victimless as “false to the point of absurdity.”  Id. at 1002, 111 S.Ct. at 2705–06.  By the same token, the sexual abuse of children, and the use of the internet to facilitate that abuse, are serious problems affecting the health and welfare of the nation.  The Supreme Court, this Court, and other courts have expounded at length on the severity of the crimes involving the sexual abuse of children and the extent of the harm caused by those crimes.....

We would find any suggestion that child sexual abuse is a nonviolent crime as absurd as the Supreme Court found the same suggestion about possession of 672 grams of cocaine.  See Harmelin, 501 U.S. at 1002, 111 S.Ct. at 2706 (plurality opinion).  Even more so.

I would expect that the defendant in this case to seek en banc and/or cert review of this Eighth Amendment ruling by the panel in Farley.  And I would predict, at least as of this writing, that the full Eleventh Circuit and the Supreme Court will not want to hear this case and that this Circuit ruling will thereby be allowed to stand.

Some related posts:

June 2, 2010 at 03:51 PM | Permalink


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If people have a problem with a physical prison sentence for the intent to have sex with a fictional pubescent girl, it is just the beginning. I want to rob Santa Claus of all his toys at the North Pole, and I am sending many letters addressed to him begging to meet him. Postal authorities invite me. I show up to with a knife to rob a fictional character. Is that OK? Or this legal system even more insane than I am?

The entire trial system is based on fiction. The word, intent, to be proven for every element of a crime, is not a fact in nature. If it is, it cannot be measured by people outside the defendant. The immunity of the buffoon on the bench is based on his speaking with the voice of God, another fictional character. Most eyewitness testimony is false memory induced by the lawyer advocate. There is the fiction that 12 strangers off the street can detect the truth, using their gut feelings, after excluding any with knowledge. What they are measuring with their gut feelings are charm and likability, especially of the chesty lawyer that keeps dropping her pencil and picking it up in front of the males on the jury. Almost all the laws and regulations covered in criminal procedure have no scientific validation, and are just made up fictions reflecting the personal preferences of the drafters.

When we arrest the current hierarchy of dumbasses, and replace them with just about anyone, every aspect of this mess of fictional will have to be replaced with empirically sound doctrines. Puking, wine besotted bums, off the street, could not be stupider or more insane than the current hierarchy.

Posted by: Supremacy Claus | Jun 2, 2010 4:27:10 PM

I didn’t read the whole opinion...but yeah, I would agree that under Harmelin’s logic the sentence is not unconstitutional. I didn’t agree with Harmelin itself, but I think its reasoning still commands at least five votes on the Supreme Court.

Posted by: Marc Shepherd | Jun 2, 2010 5:12:15 PM

i'm divided by this case - the 30 year mandatory minimum for attempted arrangement of rape of a child over the internet is rediculous - it is a stupid law and congress should change it so that the same mandatory minimum that applies to successfully arranging to rape a child over the internet does not apply to unsuccessful attempts.

yet, its impossible for me to say that a 30 year sentence for that icky perv is unjustified given the facts of that case. while what the icky perv did was sickening enough, to attempt to claim that it was all an act in the attempt to sleep with the mother was so rediculous as to deserve extra time for sheer stupidity. of course, you have to figure that anyone dim enough to believe that there is a real mother eager to set up a threesome between her 11 year old daughter and some random icky perv off the internet is rather dim to begin with, but if ther ewas a "stupidity of crime" enhancement that icky perv would definitely qualify.

ginny :)

Posted by: virginia | Jun 2, 2010 7:33:59 PM

Entrapment gets dangerous the more creative it gets. Maybe this wasnt entrapment, and this dude was a Perv. Should be locked up.

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Posted by: Radu Prisacaru | Jun 3, 2010 4:35:27 AM

I work with sex offenders, and one guy who has raped or molested over two dozen kids in the past 60 years has spent a total of 10 years in prison. Just sayin'

Posted by: NickS | Jun 3, 2010 8:41:01 AM

I am writing a sci-fi story about this scary alternate reality. In it, the judge instructs jurors to use their brains to consider the facts of the case and their conscience to consider the facts of the law in the case. It has a twisty ending where only people who actually harm others get incarcerated.

Posted by: Jardinero1 | Jun 3, 2010 1:33:49 PM

Can't help but wonder if Farley would have progressed from a porn addiction and sick fantasies to buying a plane ticket to Georgia but for seven months of sustained encouragement, teasing, chiding and goading by Detective "Stephanie."

I'm not religious, but reading through the decision I couldn't help but think of the line from the Lord's Prayer: ...lead us not into temptation, Lord, for that's the province of the Clayton County (Ga.) Sheriff's office and the FBI.

Virginia's right. Thirty years for what this guy did (didn't do?)is indeed ridiculous.

Posted by: John K | Jun 3, 2010 2:04:40 PM

i have to agree. i have always though it was completley criminal to charge and convict someone of talking to and trying to meet a minor when in fact THERE WAS NEVER A MINOR involved that in fact the individual was talking to some 50 year old nazi while in a LEGAL adult chat room. Where minor's are not even legally supposed to be in the first place.

Just about as stupid and crimnal as making the same charge against some poor drunken guy after he picks up a woman in a bar. You know those places where you have to be 21 TO GET IN and get a drink and it's discovered later the so-called women is under age.

BUT of course NO CHARGES are ever filed against the fraud and liar who called themself an adult.

Posted by: rodsmith | Jun 4, 2010 11:12:10 AM

john k.: "Virginia's right. Thirty years for what this guy did (didn't do?)is indeed ridiculous"

me: actually i'm wrong, both charges he was convicted of have mandatory minimums so this icky perv faces will get at least a 40 year sentence.

Posted by: virginia | Jun 6, 2010 12:56:24 PM

I grew up with said offender. Never saw this coming. He admitted to sleeping with a 14 yr old previously. His taste in young girls won't change. His intentions were obvious when he flew to Atlanta. Leave him in jail-that's one less pervert we have to worry about!

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