Sixth Circuit panel, again, finds substantively unreasonable a non-prison sentence child porn downloading in Bistline

As first reported in this post, a Sixth Circuit panel early last year in US v. Bistline, 665 F.3d 758 (6th Cir. 2012), ruled that is was substantively unreasonable to impose a non-prison sentence on a defendant who "pled guilty to knowingly possessing 305 images and 56 videos of child pornography on his computer" and faced a recommended guideline sentence of 63-78 months’ imprisonment."  Thereafter, just about a year later as reported in this post, U.S. District Judge James Graham resentenced this defendant to the same sentence imposed the first time around, but also ruled that the 70-year-old Richard Bistline must be confined to his Knox County home for the first three years of probation.

Today, via US v. Bistline, No. 13-3150 (6th Cir. June 27, 2013) (available here), the same Sixth Circuit panel has yet again deemed this sentence substantively unreasonable through an opinion that quotes a lot of what the panel said the first time around.  Here is how the lastest Bistline opinion concludes:

Throughout the process of imposing Bistline’s first sentence and then his second, the district court placed excessive weight on the few factors that favor a lesser sentence, while minimizing or disregarding altogether the serious factors that favor a more severe one.  The result once again was an abuse of the district court’s discretion. The sentence imposed on remand does not “reflect the seriousness of the offense”; it does not meet the retributive goal of “provid[ing] just punishment for the offense”; and it does not “afford adequate deterrence to criminal conduct[,]” among other deficiencies. 18 U.S.C. § 3553(a)(2)(A), (B).  Bistline’s sentence is substantively unreasonable.

The government also requests that we reassign the case to a different district judge for resentencing. In deciding whether to reassign a case, we consider, among other factors, “whether the original judge would reasonably be expected . . . to have substantial difficulty in putting out of his mind previously-expressed views or findings[.]”  United States v. Garcia-Robles, 640 F.3d 159, 168 (6th Cir. 2011) (first alteration in original) (quoting Bercheny v. Johnson, 633 F.2d 473, 476–77 (6th Cir 1980)).  The record in this case makes clear that the district judge would have such difficulty here.  Moreover, on remand, the district judge said the following: “If I have got to send somebody like Mr. Bistline to prison, I’m sorry, someone else will have to do it. I’m not going to do it.”  We therefore grant the government’s request to reassign the case.

Bistline’s sentence is vacated, and the case remanded for reassignment and resentencing.

At this stage, and with a reassignment now ordered, it will be interesting to see if the defendant here might seek en banc review or even certiorari in an effort to find a group of judges who might be prepared to conclude this sentence is reasonable despite being well below the calculated guideline range.

Prior related posts:

• Sixth Circuit finds substantively unreasonable a one-day of lock-up for child porn downloading
• District Judge at resentencing continues to resist federal child porn guidelines even after Sixth Circuit reversal

UPDATE:  Over at the Sixth Circuit Blog, Bradley Hall has this new lengthy post about the Sixth Circuit's work in Bistline which it titled "The Sixth Circuit is a Sentencing Court." It gets started this way:

In a troubling line of cases culminating in today’s decision in United States v. Bistline (Bistline II), the Sixth Circuit has engaged in "substantive reasonableness" review to impose an inflexible rule that in cases involving the possession of child pornography, district courts must impose prison sentences, regardless of whether their analysis of the 18 U.S.C. § 3553(a) factors tells them that prison would be "greater than necessary" to effectuate the statutory goals of sentencing, and regardless of the fact that Congress itself elected not to impose a mandatory minimum sentence.

The analysis in this post reinforces my sense that the defendant here ought to at least take a shot at en banc review before concluding that the Sixth Circuit has essentially mandated that he get sent to federal prison.