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December 14, 2011

Fifth Circuit, taking issue with Second Circuit's work in Dorvee, affirms 220-month sentence for child porn downloading

The Fifth Circuit has a lengthy new opinion in discussing federal child porn sentencing in US v. Miller, No. 10-50500 (5th Cir. Dec. 13, 2011) (available here).  Here is how the opinion starts, along with some snippets from what is an extended substantive discussion of the federal child porn guidelines:

Aubrey Miller pled guilty to one count of transportation of child pornography in violation of 18 U.S.C. § 2252(a)(1).  The district court sentenced Miller to 220 months of imprisonment (18 years and 4 months), a term within the advisory Guidelines range and less than the statutory maximum of 240 months of imprisonment.  The district court also imposed a twenty-five-year term of supervised release. Miller appeals his sentence and elements of his supervised release.  We affirm....

The Second Circuit discussed at considerable length in Dorvee the history of the sentencing Guidelines that apply to child pornography offenses and the role of Congress in that history.  The Second Circuit surveyed writings that have expressed disapproval of these Guidelines and congressional actions regarding them. That court was highly critical of the child pornography Guidelines, concluding that “[a]n ordinary first-time offender is therefore likely to qualify for a sentence of at least 168 to 210 months, rapidly approaching the statutory maximum, based solely on sentencing enhancements that are all but inherent to the crime of conviction.”  The Second Circuit asserted that “adherence to the Guidelines results in virtually no distinction between the sentences for defendants like Dorvee, and the sentences for the most dangerous offenders who, for example, distribute child pornography for pecuniary gain and who fall in higher criminal history categories.” That court declared, “[t]his result is fundamentally incompatible with § 3553(a).”...

With great respect, we do not agree with our sister court’s reasoning.  Our circuit has not followed the course that the Second Circuit has charted with respect to sentencing Guidelines that are not based on empirical data.  Empirically based or not, the Guidelines remain the Guidelines.  It is for the Commission to alter or amend them.  The Supreme Court made clear in Kimbrough v. United States that “[a] district judge must include the Guidelines range in the array of factors warranting consideration,” even if the Commission did not use an empirical approach in developing sentences for the particular offense.  Accordingly, we will not reject a Guidelines provision as “unreasonable” or “irrational” simply because it is not based on empirical data and even if it leads to some disparities in sentencing.  The advisory Guidelines sentencing range remains a factor for district courts to consider in arriving upon a sentence....

In the present case, the district court expressly considered and rejected reasoning similar to that in Dorvee to the effect that those who “merely” possess or transport child pornography should not receive the same or more severe sentences than those who have actual sexual contact with a child....  The district court considered the policies underpinning the child pornography Guidelines.  It concluded that the sentence imposed, 220 months of imprisonment, was not greater than necessary to accomplish the purposes set forth in 18 U.S.C. § 3553.

Miller contends that punishment for his offense should have been mitigated by his personal characteristics and history, including his difficult childhood, his service in the Navy (prior to his other-than-honorable discharge), and the empathy for child pornography victims and remorse he attained after he was raped in prison. The district court considered each of these factors.  Miller’s disagreement is with the weight that the court gave to each.  The district court did not fail to give sufficient weight to Miller’s characteristics and history.

Some related posts on related rulings from other circuits:

December 14, 2011 at 04:01 PM | Permalink


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hmm interesting. Wonder just where this buch was when a sister court was giving someone those SAME GUIDELINES called for 0-6 months in jail TEN YEARS!

sorry the whole buch is a group of two-faced retards!

Posted by: rodsmith | Dec 14, 2011 5:51:50 PM

Your choice of vocabulary, rodsmith, leads me to think you are immature, are of low intellect and/or have no substantive arguments against the court's opinion.

Should you desire anyone older than 10 to find your argument (if that's what you want to call it) persuasive, I would refrain from such childish, immature and offensive remarks (i.e. resort to the word "retards").

Posted by: concerned frequent reader | Dec 14, 2011 6:39:54 PM

Needless to say rodsmith disagrees with the court's opinion and I'd second the motion regardless of the terminology he chose to use.

Posted by: counterpoint | Dec 14, 2011 7:09:52 PM

Who's saying I don't, too, disagree with the court's opinion? It's of no moment.

rodsmith's offensive personal slur should not be tolerated. In fact, if one disagrees with the court's opinion, they should abhor rodsmith's "terminology," as it detracts from whatever valid arguments there are against the 5th circuit's opinion.

Posted by: concerned frequent reader | Dec 14, 2011 7:25:05 PM

Good for them - now, let's see some legislative action to resolve the conflict because Congress and the Sentencing Commission needs to fix the issue of icky perv sentencing and not the courts. My first suggestion - take a look at what penalties are likely from contact offenses with children and end the practice of punshing someone who receives through peer to peer software a photograph of a child being molested more than someone who molests an actual child. That should be the baseline - as disgusting as child porn is, molesting real children is way worse - the sentences need to reflect that and they don't.

But again, good for the court for disagreeing - bring the issues into focus and make it clear to Congress and the Sentencing Commission that icky perv sentencing is their mess that they need to clean up.

Posted by: virginia | Dec 15, 2011 7:15:04 AM

well sorry concerend frequent reader but i call em like i see em. They ARE two-faced and retarded if they think any normal american can't see just WHAT they are!

Posted by: rodsmith | Dec 15, 2011 9:58:31 AM


Well, a couple things, CP is much more likely to be a federal matter than the contact offenses. It's still possible of course for the contact offenses to become federal it's just not as likely where the CP itself is almost always going to have a federal hook.

So I would ask is the lighter sentencing received by contact offenders actually true at the federal level as well, or is it just a different weighing of the benefit of incarceration by the federal government and states? If it is really just the latter then I am not at all sure that there is anything that actually needs to be repaired. different sovereigns are allowed to come to different conclusions on such matters of judgement.

And second, if the divide exists even in federal sentencing then perhaps it indicates that for some reason federal contact offense sentencing is too lenient rather than CP too harsh.


Just because the district court is allowed to vary from the guidelines per the various SCOTUS pronouncements does not mean it is required to do so by any of them. This case reflects that reality. I think the 2nd circuit got this call wrong when it basically mandated that district courts ignore some guidelines.

Posted by: Soronel Haetir | Dec 15, 2011 10:38:48 AM

rodsmith, if you think that's "call em like [you] see em," then I will only reiterate that it causes one to view you as an immature individual, with a drastically limited vocabulary, who is of low intellect and who is unable to actually articulate a meaningful argument. Good luck with that.

Posted by: concerned frequent reader | Dec 15, 2011 11:39:40 AM

LOL "causes one" why not just use the "ROYAL WE" and be done with it!

i CAN use big words when needed. But in this case considering who and what i'm talking about. I was going for little simple words that MIGHT sink in if they happened to be reading!

While this may be an offical Legal blog. There are a large number of NON-lawyers who read it. They could care less about big words and a lot of legal text! They like me bring it down to earth with normal everyday language! ....there a big word! happy now!

Posted by: rodsmith | Dec 16, 2011 1:42:06 AM


Just because the district court is allowed to vary from the guidelines per the various SCOTUS pronouncements does not mean it is required to do so by any of them. This case reflects that reality. I think the 2nd circuit got this call wrong when it basically mandated that district courts ignore some guidelines."

Maybe so Soronel but if court after court when faced with an individual who is protesting a sentence that is close to the max sentence UNDER the guidelines and every court basically says TOUGH SHIT! as long as it was WITHIN the guidelines your out of luck and we affirm!

to have ANOTHER court go what 100000% OVER the recomended guildline to then be upheld is CRIMINAL and TWO-FACED!

there is NO OTHER way a normal american citizen is going to take it!

Posted by: rodsmith | Dec 16, 2011 1:45:14 AM

rodsmith: "there is NO OTHER way a normal american citizen is going to take it!"

Most "normal" American citizens are too ignorant to care... that is until they are in a position to care.

Posted by: Huh? | Dec 19, 2011 1:39:38 PM

got to give you that one huh! of course considering the newest report that shows 40% or better of all young people in the country now have an arrest record... would seem to indicate PARENTS are wising up!

Posted by: rodsmith | Dec 19, 2011 11:25:26 PM

unfortunately that kind of scares me! they have been asleep and ignorant too long. they are waking up ignorant! which takes them into the territory once held by the people of germany after the first world war when their country went into the toilet and then suddenly a savior showed up to save them! yep saved most them right into a grave!

Posted by: rodsmith | Dec 19, 2011 11:27:29 PM

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