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May 17, 2011

Notable federal judge gives notable (probation?!?) sentence in "despicable" child porn case

A helpful reader alerted me this local press story, headlined "Rio Grande City man gets five years probation in child pornography case," reporting (somewhat confusingly) on a notable federal child pornography sentencing decision coming from a notable federal sentencing judge.  Here are the (somewhat unclear) details as reported in this piece:

Ethan Saenz clenched his hands tightly behind his back as he begged a federal judge Monday to grant him a second chance at life, vowing to never have anything to do with child pornography again.  And U.S. District Judge Ricardo Hinojosa complied, citing the 25-year-old’s history of physical and sexual abuse as a child when he sentenced him with just five years of probation for possession of child pornography.

“If you look at his childhood, wouldn’t you say…this is somebody who’s actually been a victim himself?” the judge asked.  “This is someone’s who’s different. He hasn’t physically abused somebody like he’s been physically abused as a child.”

Arrested in 2005, the Rio Grande City man faced more than six years in federal prison after investigators found more than 100 images and several videos of boys participating in sexual acts, sometimes bound and gagged and often with older men on Saenz’s computer.  Though he described that pornographic collection as “despicable,” Hinojosa did not concede to a federal prosecutor’s urgings to grant Saenz a heavy sentence.

Assistant U.S. Attorney Juan Felipe Alanis was unconvinced Saenz deserved a lesser sentence because of his troubled history, which included losing his mother early in life to a bus accident, an absent father and a foster mother who hit and molested him and another child in her care.  “Many of the people have hard lives similar to him, but they don’t turn to child pornography,” Alanis said.  “It’s an excuse the government sees a lot.”

Yet Hinojosa said Saenz’s circumstances were too different to ignore and noted he never took his actions a step further and actually preyed on young children like other suspects the judge has encountered.  He also said Saenz had made progress since his initial plea of guilt, including five years of home confinement, earning a bachelor’s degree at the University of Texas, Pan American, staying away from controlled substances and seeking psychological care.

The judge also referenced the positivity he saw in many statements submitted on Saenz’s behalf from his professors, pastors and more....  Under his sentence, Saenz also must wear an electronic tracking device for another 24 months and register as a sex offender for the remainder of his life, updating his residence when he moves.

Though the headline of this press report call the sentence for Saenz "five years probation," it appears the defendant has already been subject to a lengthy term of home confinement and will be subject to continued electronic monitoring for two years.  Also unclear is whether the judge here used traditional departure authority or 3553(a) variance discretion to impose the way-below-guideline sentence here despite the defendant's "despicable" crime.

But while the exact sentence here is a bit unclear, what is clear is that even a member of the US Sentencing Commission, and one who was the USSC Chair during the recent run-up in child porn prosecutions and harsh sentences, recognizes big problems with the usual operation of the federal child porn guidelines in some cases.  As informed readers know, U.S. District Judge Ricardo Hinojosa is a current member and the former Chair of the US Sentencing Commission.  For that reason, I have an inkling that his sentence here might have used departure authority rather than variance discretion to do justice.  Whatever the particulars, it would be really great if Judge Hinojosa produced a written opinion to explain the basis for his judgment that here probation(?) was a "sufficient but nor greater than necessary" sentence for at least one federal child porn offender.

May 17, 2011 at 12:51 PM | Permalink

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Comments

Can't wait to see the written opinion. Excuses excuses excuses. It would be dereliction of Duty if the AUSA didn't appeal this sentence. This is simply amazing. I know this judge was hard over on reducing crack sentences - it now looks like he's on a path to do the same for child porn predators.

Posted by: DeanO | May 17, 2011 4:04:38 PM

DeanO is taking the wrong approach to analyzing this case. Probation is within the range of punishments that the statute permits. That means Congress must have believed that sanction was appropriate for some defendant. Otherwise, Congress would have set the minimum higher.

So, why not this defendant? We didn’t see the defendant or the case for ourselves, but the judge articulated a pretty good long list of good reasons. Go ahead and argue that they’re wrong, but do consider them.

This defendant seems to have undergone substantial post-offense rehabilitation (which the Supreme Court has said is relevant), and I wouldn’t minimize the coercive effect of lifetime registration as a sex offender, with all the collateral consequences of that.

The fact that the prosecutor wanted more is not, on its own, dispositive. Otherwise, we would just let the AUSA choose the sentence in every case, and dispense with judicial process altogether.

Posted by: Marc Shepherd | May 17, 2011 5:18:11 PM

Did not think he had it in him..so wedded to his beloved USSG

Posted by: Steve Prof | May 17, 2011 5:45:26 PM

The abuse excuse. Pathetic.

Posted by: federalist | May 17, 2011 8:28:55 PM

I'm curious as to why the abuse "excuse" is "pathetic." Over the years, haven't we seen a huge wave of victims' rights laws come into effect or strengthened, including the new fad of suing CP defendants for millions of dollars? The basis of these laws is that a victim, especially one of a sexual crime, is significantly and psychologically harmed in unimaginable ways that will haunt them for the rest of their lives?

As a victim of childhood physical and sexual abuse himself, why doesn't this defendant get to argue that his offensive conduct was at least partially caused by his own abuse, as surely it must have harmed him greatly. To deny him that "right" would fly in the face of the very arguments put forth by VR advocates. The "[m]any of the people have hard lives similar to him, but they don’t turn to child pornography," argument is meaningless as it is old. Many people drink alcohol but not everyone becomes a raging alcoholic who commits vehicular manslaughter... but some do.

Each and every human being on this planet is different: physically, emotionally, developmentally, psychologically, etc., we are all unique individuals who react differently to different outside stimuli. However, the laws fail to recognize those differences. Of course we are all (supposed to be) equal in the eyes of the law, but no two defendants are identical.

This guy has (basically) been out of society for 5 years already under home confinement... what purpose would it serve to send him to prison on top of that? He needs therapy, and lots of it.

Posted by: centrist | May 17, 2011 11:01:49 PM

What's more interesting in this case is the the PROSECUTOR made the decision to charge only for possession and not for receipt. If they were able to make the burden for possession, they would likely be able to make the receipt burden. In that case the judge would have had NO discretion and been forced to sentence the Saenz to the five year mandatory minimum. This case highlights the descrepancies that mandatory minimums have created in substantially similar cases based only on the charging decision by the AUSA.

Posted by: Fixnrlaws | May 18, 2011 8:40:48 AM

If you think appealing the substantive reasonableness of this sentence to the Fifth Circuit is somehow going to get the sentence reviewed, much less changed, you are mistaken. There is no substantive reasonableness review in the Fifth Circuit. As an example of the type of reasonableness review one gets in the Fifth Circuit I give you the unpublished opinion of US v. Salvador Nunez, 10-10845. There the defendant argued the sentence was substantively unreasonable and the Government moved for summary affirmance. It was granted.

Posted by: Fifth Circuit Hack | May 18, 2011 9:50:11 AM

In 2002, a CP database was formed to help prosecution of people, 2006 AW Act was inacted which is where most of the problems come from in today's court, and now in 2010-2011 the Federal Government has a tracking program to hunt people down..great!!! But wait it comes with a catch...in order for them to use it they have to distribute CP accross the world and allow people to download from there 2002 created database...umm...so let me get this right...1 person downloads 1 item..then gets passed around none stop to thousands just to go after 1 person............and how does this help the victims when our own government is the major source of the distribution..I'm not defending the the lookers but umm two wrongs don't make it right...o and when people are fined in court, the victims don't get that money the government does so that means they also benefits from victimized children like myself that is being passed around all day, all night, everyday. To break it down..Congress can kiss my a** also for what they are doing to use also (the victims)!!!

Posted by: john doe | Jul 24, 2012 4:23:27 PM

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