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February 18, 2015
Yet again, Sixth Circuit reverses one-day sentence for child porn downloading as substantively unreasonable
Regular readers who follow federal sentencing in child porn cases likely recall that the Sixth Circuit and an Ohio-based federal district judge got into a sentencing tug-of-war over the sentencing of child porn downloader Richard Bistline not long ago. And even irregular readers should know that circuits, if they stick with it, will always win these kinds wars. More proof of that reality come from another similar Sixth Circuit case decided today, US v. Robinson, No. 13-230806 (6th Cir. Feb. 18, 2015) (available here), which starts this way:
The government appeals, for the second time, from the noncustodial sentence imposed on Rufus Robinson (“Defendant”) for the possession of more than seven thousand images of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B). Defendant’s previous sentence of one day of incarceration and five years of supervised release was held substantively unreasonable by this Court in United States v. Robinson, 669 F.3d 767 (6th Cir. 2012) (“Robinson I”). On remand, the district court again sentenced Defendant to one day of incarceration, with credit for time served. The district court also lengthened the period of supervised release and imposed additional conditions of release. The government’s second appeal raises the question of whether this second sentence is substantively reasonable.
For the reasons set forth below, we VACATE Defendant’s sentence and REMAND the case for reassignment and resentencing.
Prior related posts concerning similar case:
- 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
- "Should defendants’ age, health issues be sentencing factors?"
- Sixth Circuit panel, again, finds substantively unreasonable a non-prison sentence for child porn downloading in Bistline
February 18, 2015 at 04:59 PM | Permalink
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Comments
there is a way the judge could show the appeals could just where to shove their stupidity.
bring the guy in for his new sentence. Order him given time served since he's obviously done more than ONE day then order a trusty court officer to take the guy to the nearest airport and put on a non us plane leaving the country and then inform the appeals court.
Posted by: rodsmith | Feb 19, 2015 2:57:03 AM
New judge checks the opinion. Cites the concerns it says s/he should factor in. Gives the person seven days of incarceration, nothing subtracted for time served. 7x original sentence! Adds a bit more time for supervised release & finds some other limit to it. "That will do it, right?"
Posted by: Joe | Feb 19, 2015 10:00:23 PM
The title is misleading, it's not a one day sentence, I expect this blog to be legal focused, then put an "eye catching title" that can be mis-used by others.
If the sentence was one day, and 20 years supervised release, I would expect many folks would rather serve a couple years and have no supervised release.
Probation and Parole are not exactly freedom, one little penalty even if not proven in the court of law since the burden of proof is lower, can send you back in the hole, having the "sex offender label", routine monitoring, difficulty in employment, residency restrictions, fees, wearing gps monitors,etc is bad enough for folks not on probation or parole who have the label.
Federal courts have made no distinction between incarceration and probation/parole. Prosecuters will sometimes offer longer probation and parole, and defendants accept without realizing the consequences that one little technical violation can send you in the hole for a longer period of time. Since the standard of proof is low (not innocent until proven guilty), even if you offer reasonable "proof" that say you didn't steal that candy bar or break your curfew, you can still be sent back.
In the digital age, with compressed zip files,pdfs, and p2p software, clicking on file that contains a gallery or downloads and opens up several different files, can results in hundreds of files. If you for instance download a music album, instead of downloading all the individual files, you might be downloading one file that contains multiple files.
A webpage for instance can leave multiple photos on your computer, when you visit a webpage "traces" of files are left on your computer, even if you "Clear history", its not deleted until its overwritten.
I don't see how the sentence is unreasonable, is he first time offender, many violent offenders may get similar long probation/parole terms if the violent crime is serious but not very serious, such as n assault case, or domestic violence case that did not result in serious injury.
If you watch an ISIS torture video or a video of an adult getting raped,set on fire,etc or even abu gharib images should you get jail time, even if we could make a copyright issue, probation/parole and not incarceration seems appropriate.
If the victims in abu gharib were 17 years of age, the photos may never be released because its "child porn", of course according to out absurd government a 17 year old teenage "selfie in the underwear" is child porn,sex registry,adam walsh act,us marshalls, sorna,etc but an 18 year old victim in abu gharib or isis is considered fine to possess.
Indefensible opinion by the sixth circuit,
Posted by: Alex | Feb 21, 2015 8:12:15 PM
