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October 11, 2012

Split Sixth Circuit opinion addresses range of child sex offense sentencing issues

The Sixth Circuit has a lengthy split opinion today in US v. Zobel, No. 11-3341 (6th Cir. Oct. 11, 2012) (available here), which covers a lot of sentencing issues that seems to arise a lot in the all-too-common setting of adult men luring girls to engage in illegal sexual activity.  Here is how the majority opinion gets started:

Defendant–appellant David Zobel appeals his sentence for knowingly coercing and enticing a minor to engage in sexual activity, in violation of 18 U.S.C. § 2422(b).  After Zobel pled guilty, the district court imposed a sentence of 150 months of imprisonment, which represented a 15 month upward variance from the upper-end of the Guidelines range. The district court also imposed several special conditions of supervised release for life, which prohibit Zobel, inter alia, from having contact with minors absent prior judicial approval, loitering in areas where children tend to congregate, and possessing or viewing pornography or materials that are “sexually explicit or suggestive.”  Zobel argues that his sentence — both the term of incarceration and several special conditions — was both procedurally and substantively unreasonable.

For the reasons that follow, we vacate the part of the special condition that bans possessing or accessing “sexually suggestive” materials, affirm the remainder of the sentence, and remand for resentencing proceedings consistent with this opinion.

A brief dissent by Judge Moore follows the lengthy majority opinion, and it gets started this way:

A district court must state in open court and in a written statement of reasons the specific reason it is imposing an outside-guidelines sentence on a defendant. 18 U.S.C. § 3553(c)(2).  Because the district court failed to state a specific reason for its fifteen-month upward variance both in open court and in its written statement of reasons, the district court committed plain error.  The majority, however, nonetheless affirms. I respectfully dissent.

October 11, 2012 at 10:22 AM | Permalink


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I think what's most amazing to me about this story is that after knowingly enticing two minors to perform oral sex on him, and then downloading kiddy porn afterwards, the defendant got an ABOVE guideline sentence of 150 months (12.5 years).

Meanwhile, in U.S. v. Mikowski, decided a few years earlier by the Sixth Circuit, a defendant that had only downloaded kiddy porn--with no associated attempts to entice minors, no diagnosis of sexual paraphilia, and no priors--got a BELOW guidelines sentence that was nearly 20 years.

Something is fundamentally wrong with our sentencing scheme here.

Posted by: Res ipsa | Oct 11, 2012 11:55:28 AM

The kiddie porn sentencing regime (in cases lacking actual contact or production) has always been WAY too severe. Having said that, you need more than just two cases decided years apart to assess whether the sentences are out of whack.

Posted by: Marc Shepherd | Oct 11, 2012 3:05:39 PM

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Posted by: Attorneys Fort Worth | Oct 12, 2012 3:24:31 AM

I looked up the Mikowski case res ipsa mentioned because for 20 years to be below guideline, that means there was a lot of aggravation to drive the baseline up that high. Apparently Mikowski had prior child porn convictions, so it shouldn't be "amazing" to you that repeat offenders face substantially harsher penalties.

Working as intended.

Posted by: lawguy | Oct 12, 2012 10:16:20 PM


Absolutely untrue--Mikowski had prior underage possession of alcohol charges (oh, the HORROR!). His conviction for kiddie porn was his first, and had a high guidelines range largely because of the number of images.


Agreed, you can't make a great assessment with n=2. But I think this case and Mikowski are good illustrations of the well-known problems with the child porn possession guidelines.

Posted by: Res ipsa | Oct 15, 2012 2:26:37 PM

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