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December 17, 2017

Lawyer asks law profs: "Looking for a chance to persuade the courts that man-mins are unconstitutional?"

Earlier this year I started to correspond with Caleb Mason concerning his effort to preserve a sentence imposed below a federal mandatory minimum in the face of a government appeal.  I suggested to Caleb that he write up an account of the case and his pitch for amicus help.  Here is the pitch:

Join my case as amici!  I was appointed by the Ninth Circuit in a CJA (Criminal Justice Act) case to defend a below-man-min sentence against the Government's appeal. I argued in my brief that man-mins are straight-up unconstitutional under Booker.  The vast majority of man-min cases out there involve a district judge reluctantly imposing the sentence with an opinion saying how much he or she hates doing so.  The defendant appeals, but there's not much for the Court of Appeals to do.  My case is the opposite -- it's the rare one in which the judge actually imposed a sentence below the man-min, and we're asking the Court of Appeals to affirm it. Judge Manuel Real, who at age 95 is on full active status (he won't even take senior status), has the courage of his convictions when it comes to man-mins. 

In this case (a CP case with a small number of images, no other bad conduct, a very sympathetic defendant history, and a demonstrated commitment to rehabilitation), Judge Real explained that 48 months was enough custody time, despite the 60-month man-min, because of lifetime s/r.   My brief (which can be downloaded below) argues that mandatory minimums are unconstitutional under Booker. Here is the main issue statement:

Issue 1: Statutory mandatory minimum sentences are unconstitutional.

Caselaw of this Court is to the contrary, but Mr. Lavinsky preserves his arguments for review by an en banc panel of this Court and by the Supreme Court. Statutory mandatory minimum sentences are unconstitutional because they violate the constitutional imperative of separation of powers.  Fashioning an individual sentence based on the facts of an individual case is a quintessential judicial power.  The Court's decision in United States v. Booker, 543 U.S. 220 (2005), should apply equally to statutory mandatory minimums as to mandatory Sentencing Guidelines, because the animating principle in Booker is separation of powers, and the mandatory guidelines that Booker rendered advisory had, per Mistretta v. United States, 488 U.S. 361 (1989), the same legislative authority as statutory provisions in the United States Code.  Additionally, the history of sentencing practices in the United States shows that the proliferation of statutory mandatory minimum sentences is an anomaly, and is inconsistent with both historical practice and historical understanding of the separation of powers.

For Booker fans (I should note that I went to the Booker oral argument; I wasn't yet a member of the Supreme Court bar, so I arrived at 11 p.m. the night before and waited on the sidewalk all night like an animal...), this case is a nice, clean opportunity to make the argument that Doug made immediately after Booker, and that has long been apparent to those of us who have been trying to understand what's happening in federal sentencing over the last decade: Booker is about preserving the inherent constitutional power of judges.  It's not about juries. It's never been about juries.  It could have been about juries, if Justice Ginsburg had stuck with the merits majority for the remedial opinion. But she didn't, and we have a remedial majority that rejects out of hand the "jury factfinding" option for sentencing -- which would have been not just the right answer but arguably the only answer if the merits opinion were really animated by the jury trial right.  (And of course, Booker applies to defendants pleading guilty as well, which it wouldn't if it was a purely jury-trial right.)

Anyway, my argument is simple.  Booker held mandatory guidelines to be unconstitutional.  Under Mistretta, each mandatory guideline was nothing more or less than a little man-min, with the same force of law as a statutory man-min written directly in Title 18.  Thus, if the guidelines had to be made advisory to preserve their constitutionality, then so should man-mins.  Read the brief (available below) -- I think this is a decent and reasonably original argument.

Second, I argue that to the extent that Booker invalidating the SRA (in particular its mandatory aspects), it restored judicial power to the pre-SRA status quo which, I argue, included an understood background power (whether inherent or under pre-SRA statutory law) to sentence below a specified minimum.

I was thinking that we'd get a quick memorandum from the panel, and then gear up for an en banc petition and cert petition.  But the panel just set the case for argument on February 16.  So that'll be fun.  And it'd be great if one or more of the judges indicated that he or she thinks the full court ought to consider this issue.

I've been bugging Doug about putting together an academic amicus brief on the legal reasons why courts should hold man-mins unconstitutional.  I know there are a hundred people out there who can articulate the arguments better than me, and who probably have clever arguments I haven't thought of.  So to you eggheads that think you have opinions about sentencing but never set foot in a courtroom: This is your chance!  Do it!  Write something someone will read!  And a court, no less.

Someone besides me needs to organize and write the amicus brief.  If anyone is willing to do that, I'll help with contacting signers, and finding counsel for amici in the Ninth Circuit and Supreme Court.  Please contact me [cmason @ brownwhitelaw.com] with any questions.

Download 2017.06.27 Lavinsky- Answering Brief

December 17, 2017 at 06:11 PM | Permalink


I am not interested in sentencing law, and cannot help you with Supreme Court jurisprudence. I do not even believe in it, since judicial review violates Article I Section 1, giving “all” law making power to the Congress.

I am not a lawyer, and I am more interested in policy. My personal interest is to end the child abuse of real children.

Let’s start at the beginning. How did the authorities find your client? Did they implant malware into the computers that contacted a child porn website? Who and why was such hacking authorized? Have you read the warrant authorizing such a measure? What law allowed the warrant? As you know, the Free Speech Clause has 2 sides. One is the freedom to receive information. Does the original warrant violate that Clause?

How did they trace his URL? Did you read the warrant authorizing the ISP provider giving them access to his identity?

This info is from a Wash. Post article not some conspiracy theory source. Who were the FBI agents who watched the child porn? Was each tested with a phallometry to insure that they are not pedophiles? Say 1% of the population have pedophile interests, how were the FBI pedophiles excluded from this investigation?


Out of the many people visiting such sites, how was his name selected? Were there any discriminatory or political considerations in the choices made? Staying on the subject of the site. How many visits were made by government officials? How much was spent by government officials to subscribe to the site? Did you subpoena the prosecutor computers, those of their supervisors? Did you examine the metadata of their visits? Were all for prosecutorial purposes, and none were for unauthorized purposes? Did you do the same with the computers of the judge? What fraction of income of the site came from government subscriptions? Did government payments subsidize and permit the site to thrive, and to continue in business to receive the visit by the client? Was this site operated by the FBI itself as in the Playpen incident? In that case, the FBI prosecuted only 1%, but had the information on 100 times as many visitors who committed no crime. Issues discussed here.


Since the prohibition of the downloading of child porn, have child porn sites shrunken or grown? If a regulation or law causes the opposite of its intent, it is called regulatory quackery. Regulatory quackery violates the procedural due process right of the defendant to a fair trial. (Equivalent example. In Vietnam, alcohol was prohibited, opiates were OK. 15% of soldiers were opiate addicts. On return, the reverse was true. The rate of opiate addiction dropped by 90% to 1or 2%, with the addicts similar to non-military addicts. That is an effective prohibition.) Since 1996, the number of child porn sites has grown into the millions from the thousands. The FBI is suborning the production of child porn.

Beyond quackery, such prohibitions may have bad public health effects. As stated, child porn sites have increased. Child sexual abuse has decreased. Child sexual abuse is in the millions. Arrests of down loaders is in the low thousands. The law is irrelevant to these rates. The rates have dropped steadily, up to 60% since child porn became available on the internet, after 1989. The drops began in 1990, and have been steady since that time, with no effect from the 1996 law or its Supreme Court decisions.

1) Legalizations of adult porn dropped the rape of real women, in the late 1960's, and have stayed lower. According to this article about the Czech Republic, the same effect may take place in child porn;


2) Prohibition raises prices, and profitability; one has to wonder if child pornographers are sending campaign contributions to legislators voting for prohibition, to suppress competition and to maintain high prices;

3) FBI subscriptions subsidize illegal sites, and now we have FBI ownership and control over such illegal sites.

My personal favorite of the considerations above is to subpoena the computers of the prosecutors, their supervisors and have them examined by forensic experts. That includes all appliances at home and at work. No lawyer would do so, but I would want to do the same with the computers of the judge, as well. I would be curious to see what happens to the appeal, like being dropped within minutes of the delivery of the subpoena.

Posted by: David Behar | Dec 18, 2017 12:17:14 AM

Sex is a messy business. And the internet is fueling the messiness of our carnal interest. The internet compiles ALL the consensual,(legal) pornography along with ALL the deviant pornography ever produced and streams ALL of it into our homes. Somehow ISPs, the pushers, (In drug parlance) are off the hook. The government, (Lawmakers, FBI) see no need to enact laws demanding CP warnings be posted. Such as when we pop a dvd in our players and we see a warning which states: "Piracy is not a victimless crime. Go to such-and-such site and see how piracy is affecting..." An important point to make here is that there are a lot of otherwise law abiding, educated, but neurologically vulnerable citizens in our society who fall into the internet's unfettered, unregulated Pandora's Box of illegal pornography. Most of these individuals need court mandated therapy, not years of incarceration and a lifetime registry. At the very least, we should abolish man mins and instead concentrate our efforts into fighting the addiction that internet technology is fueling and indeed, promoting.

Posted by: tommyc | Dec 18, 2017 7:59:41 AM

Creative arguments, but a bit of a stretch. Essence of Booker was that any fact that altered sentencing range was a finding that had to be made by jury. As such, binding guidelines were unconstitutional because they replaced fact-finding by a jury with fact-finding by a judge.

More significantly, the logic that mandatory minimums are unconstitutional would throw out all sentencing statutes. If it is unconstitutional to say that the lowest potential punishment for trafficking weight x of drug y is z years, then it is also unconstitutional to say that the lowest possible penalty for premeditated murder is b years or life without parole. There have always been mandatory minimums for certain offenses. What has changed has been what the mandatory minimums are and for which offenses, but that is a legislative question.

Posted by: tmm | Dec 18, 2017 11:34:37 AM

I agree with @tmm. The type of arguments made in the OP are the equivalent of shooting a horse with the flu. The good news about shooting the horse with the flu is that the horse no longer has the flu, the bad news is that one no longer has a horse. I for one would rather have the sick horse with the flu than no horse at all.

Posted by: Daniel | Dec 18, 2017 11:40:41 AM


If the sentence for first degree murder is 25 to life, can a judge not disregard that and sentence a defendant to, IDK, time served? Is there no way for a judge to depart from the presumptive sentence under specific mitigating circumstances [e.g. diminished mental capacity or the offender cooperated with the state]?

I never read a criminal statute that said "penalty up to judge." So in reality, wouldn't there be a minimum to every sentence?


Posted by: Huh? | Jan 7, 2018 2:16:36 PM

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