Split Sixth Circuit panel spars over federal child porn sentencing as it affirms within-guideline sentence

Anyone who follows federal child porn sentencing decisions and trends will want to be sure to check out a split opinion handed down today by the Sixth Circuit in US v. Overmyer, No. 10-1716 (6th Cir. Dec. 20, 2011) (available here). The majority opinion authored by Judge Sutton includes these passages, which help explain the issue and the panel's holding:

Leonard Overmyer pled guilty to transporting child pornography and received an 87-month prison sentence.  The district court addressed all of Overmyer’s arguments for a lower sentence and reasonably imposed a bottom-of-the-guidelines sentence.  We affirm....

Overmyer moved for a downward variance, requesting a sentence near the statutory minimum on three grounds: he sought therapy on his own initiative; he expressed remorse for his actions; and he suffered from depression over the impact of the crime on his family.  The court imposed an 87-month sentence, explaining that it agreed with the severity of the child-pornography sentencing guidelines — “that the guidelines themselves measure the appropriate harms” — and that it would not exercise its authority to vary downward based on a policy disagreement with them....

The parties do not dispute the applicable guidelines range, and the district court adequately addressed each of Overmyer’s arguments for a variance.  The judge “recognize[d] that . . . [Overmyer’s] nuclear family has been shattered. . . . [and took] into account the fact that [Overmyer] now . . . understands the victimization of young children who are depicted in these images.” R.39 at 13.  He also “fully underst[oo]d” that “Mr. Overmyer has lost his livelihood and his nuclear family,” but said that in his “judgment that merits a sentence at the lowest end of the advisory guideline range,” R.39 at 16, not a sentence below the range.  The court addressed each of Overmyer’s arguments for a below-guidelines sentence, leaving nothing procedurally awry about the sentence....

Overmyer next raises a substantive-reasonableness objection — that his sentence is too long.  A within-guidelines sentences is presumptively reasonable, Vonner, 516 F.3d at 389, and Overmyer points to nothing to displace the presumption.  He claims that a shorter sentence is in order because he sought counseling on his own after the arrest and because he was unusually despondent over the collateral effects of his conduct.  Although these considerations might support a lower sentence, they do not compel one, and that is all we have license to consider....

In the aftermath of United States v. Booker, 543 U.S. 220 (2005), Rita v. United States, 551 U.S. 338 (2007), and Kimbrough v. United States, 552 U.S. 85 (2007), it is trial judges, not appellate judges, who have considerable discretion in applying the § 3553(a) factors to an individual.  Whether in a given case a district court agrees with the guidelines recommendation, varies downward from the guidelines range or varies upward from the range, we defer to their sentencing decisions unless those decisions are unreasonable.  It follows that, while our colleague is correct that appellate judges may disagree with the sentencing judge about the appropriateness of a given sentence in a given case, mere disagreement is not by itself sufficient to warrant reversal.  Something more — a disagreement that establishes the unreasonableness of the sentence — must be present....

Overmyer received and possessed at least 90 images (89 more than necessary for the imposition of the five-year minimum), including images that are more sadistic than the “ordinary” child pornography sufficient to trigger the mandatory minimum.  He persisted in his criminal conduct even after it cost him his job, and he lied to investigators when they came looking for evidence of the crimes.  Nor does anything in the record show that Overmyer is fully rehabilitated; it shows only that he sought treatment and made commendable progress in addressing his addiction.  Whatever we might have done in sentencing Overmyer, it is difficult to say that the district court acted unreasonably in sentencing him to more than the statutory minimum.

The dissenting opinion authored by Judge Merritt includes these passages, which help explain his concerns with the panel's holding: 

The problem in this pornography case is the gross disparity, inequality, and unfairness that exists in sentencing generally, but even more so in these child pornography viewer cases. It illustrates the continued sad dependence of federal judges on a harsh sentencing grid created by a distant bureaucracy....

Here the defendant also asserts that “a sentence in the 60 month range would be sufficient but not greater than necessary to punish him for his offense behavior.” (Appellant brief, p. 9.)  My colleagues do not even discuss, much less take seriously, the parsimony provision....

As an appellate judge required by law to review and consider the sentence in this case, I assume I am permitted to disagree respectfully with the sentencing judge about the fairness of the guidelines policy and its application in this case.  Like the judges in [the Third Circuit case of US v.] Grober, I would limit the sentence in such cases to the mandatory minimum of 5 years, as requested by defendant....  The Guidelines in this case, as in many cases, are too harsh, here “unconscionably” harsh, as the Third Circuit says....  In the end it is still supposed to be the Article III sentencing judges at the trial and appellate levels who are responsible for the sentence imposed, even though the grid system has given the prosecutor, a party to the case, a dominant role, as the Third Circuit district and appellate judges discussed in Grober.

My colleagues’ response to this line of argument is that it is irrelevant and unworthy of serious consideration: They say clearly that if a district court and the grid system are together on a sentence within the grid, a reviewing judge has no business interfering. Presumably, that is the reason my colleagues refuse to discuss the harshness of the sentence, the addictive and nonviolent nature of the crime, the parsimony provision of the Sentencing Act or the validity of the grid policy that the district judge discusses and accepts.  No effort is made to rebut the views expressed in the Grober case or in the many opinions and articles discussed there which strongly disagree with the guideline policy, and no effort is made to discuss the elemental fact that most of the guidelines enhancements are inherent in the crime itself for which Congress established a mandatory minimum of five years.  The only argument that persuades my colleagues is that the district court and the grid are in agreement.  When that is the case, the policy and the sentence must be right and no further analysis or commentary is needed.  The grid becomes a biblical command for the reviewing judges.  I do not agree.

In part because I played a role as an expert witness in the Grober case (which itself gets a mention in the dissent), I am disinclined to weigh in concerning the child porn sentencing substance of this Sixth Circuit panel dispute.  I am, however, inclined to assert that the true essence of the dispute in Overmyer is ultimately more about the nature and direction of substantive reasonableness review than about federal child porn sentencing.