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May 20, 2016

Does anyone think former Subway pitchman Jared Fogle has any real chance to have his long federal sentence reversed as unreasonable?

The question in the title of this post is prompted by this local story discussing the high-profile sentencing appeal being heard today by the Seventh Circuit.  Here are the basic details:

Former Subway pitchman Jared Fogle is asking a federal appeals court judge to shorten his nearly 16-year prison sentence. A hearing on Fogle's appeal, which is scheduled this morning in the U.S. 7th Circuit Court of Appeals in Chicago, comes about six months after U.S. District Judge Tanya Walton Pratt sentenced Fogle to 15 years and eight months in federal prison.

Fogle argued that his sentence was unreasonable and that Pratt abused her discretion when she went beyond the sentence that federal prosecutors had recommended as part of a plea agreement.

The one-time face of Subway sandwiches pleaded guilty to possession or distribution of child pornography and traveling across state lines to have commercial sex with a minor. Prosecutors recommended a maximum sentence of 12.5 years, while Fogle's defense attorneys asked for five years....

On appeal, Fogle argued that the sentence he received is "procedurally flawed" for three reasons. First, Fogle did not plead guilty to production of child pornography, and he played no role in producing the images and videos he received from Taylor, according to court records filed by Fogle's attorney.

Second, the punishment is "erroneously grounded in acts that Fogle didn't do and in Fogle's fantasies," neither of which should have been used to justify an enhanced sentence, court records say. "Notwithstanding any fantasies Fogle may have had, or his discussions with third parties concerning possible sexual contact with children younger than the prostituted minors, these events never ultimately culminated in any chargeable criminal activity," court records say.

Third, the sentence was erroneously based on Fogle collecting and viewing pornography of children as young as 6. Fogle argued that although he viewed pornographic images of children, he neither collected them nor asked Taylor for the images.

The district court also seemed to punish Fogle for seeking treatment after his arrest, court records say, and erroneously rejected a probation officer's recommendation for a less harsh sentence based on the additional stress and collateral damage he will endure because of his notoriety.

Fogle also argued that he never had sex with the minors whom Taylor recorded, and never shared any of the pornographic images and videos with anyone other than on one occasion, when he showed them to a woman with whom Fogle was romantically involved. Although he expressed interest in having sex with minors as young as 14, court records say, he never actually did.

In response to Fogle's arguments, federal prosecutors said Pratt "thoroughly and appropriately explored the unusual nature and circumstances of Fogle's offenses and his history and characteristics." Although Fogle was not involved in the production of child pornography, "he knew where the production took place, knew that it was going to happen, and did nothing, instead waiting for his chance to receive the material," according to court records filed by the U.S. attorney's office.

While prosecutors acknowledged the differences between Fogle and Taylor, they said Fogle rationalized and encouraged Taylor's conduct — and, for several years, benefited from it. "Fogle's fantasies were grounded in reality, in that he fantasized about and sought actively to repeat what he had already done, i.e., pay minors for sex," court records say.

Prosecutors also echoed Pratt's statements during Fogle's sentencing hearing last November. Fogle, unlike many offenders, had a relatively easy childhood, free of abuse and neglect. Although he did seek medical treatment, he did so only after he was caught.

Prior related posts:

May 20, 2016 at 12:35 PM | Permalink


If he were in the Fifth Circuit, filing a brief challenging the reasonableness of the sentence is akin to filing an Anders brief.

Posted by: AFPD | May 20, 2016 2:55:35 PM

Same in the 10th Circuit, which has never once found a sentence to be unreasonably high.

Posted by: lawyer | May 20, 2016 7:22:04 PM

Judges apparently can do what they want, doesn't matter what the plea deal.
Did Fogle get more time then he deserved? Ask those who are doing 5-10 for first-time-non-contact CP.
Did he get more time then he deserved for fantasies that he never acted on? It seems the law now takes into consideration crimes that you never or may never commit as "good enough reason" to give you more time. God help us all.!

Posted by: kat | May 21, 2016 3:21:29 PM

He should consider himself lucky, there have been court decisions upholding life sentences for mere possession of child porn, or under arizona, a 5-10 year sentence for each image. Granted, the only thing in his favor is he didn't act, though I have no idea what age the CP was, federal law means that a one day year old vs. a 17 year old 364 day , this even applies to the content, even if there is no sexual act, it can be considered CP. Recall a case in alabama where Jeff Pierson modeled teenagers in "suggestive poses" non-nude. The wide latitude and vaughness means that CP statue should be struck down to be amended, granted the congress doesn't want to do it, but the courts should step in, similar to the federal corruption case with the former va governor.

Posted by: pat | Jun 4, 2016 4:22:11 AM

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