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July 9, 2024
How Kisor rolls: Third Circuit rejects guideline commentary in child porn sentencing
I have blogged in the past about how the Supreme Court's ruling in Kisor v. Wilkie, which recast for federal courts the deference they give to agencies in construing agency regulations, has rippled in uneven and unpredictable ways through circuit decisions about how Guideline commentary can inform application of certain USSC Guidelines. A helpful reader made sure I did not miss the he latest variation on these themes from a panel decision by the Third Circuit in US v. Haggerty, No. 23-2084 (3d Cir. July 9, 2024) (available here). Here is how it begins:
In imposing a sentence on a defendant who has been found guilty of a child pornography-related offense, a district judge is required, under the United States Sentencing Guidelines, to enhance the applicable Guideline Sentencing range based on the number of “images” “involved” in the offense. Specifically, under U.S.S.G. § 2G2.2(b)(7)’s graduated sentencing enhancement scheme, that defendant’s Guideline Sentencing range may be enhanced by up to five levels based on the number of images involved.
The calculus is a simple one where the pornographic matter consists only of “still” images. But what about when a moving image — that is, a video — is involved in an offense? The Guideline itself does not answer that question. So may the judge look to the Commentary to the Guideline, which specifies that each video — no matter its length — constitutes 75 images for purposes of calculating the applicable sentencing enhancement? Whether we should defer to this commentary is the issue we now confront.
We hold that “image,” in the moving picture or video context, unambiguously means “frame.” Deference to the Commentary’s 75-images rule is therefore unwarranted under Kisor v. Wilkie, 588 U.S. 558 (2019). Instead, the number of frames comprising a moving picture or video will determine the specific sentencing enhancement that a District Judge must apply. Because the case before us involved videos with over 14,000 total frames, Haggerty probably possessed the requisite number of images to warrant a five-level enhancement under the Guideline. But because the District Court did not use the frame-counting calculus we now hold is the correct one, we will vacate the District Court’s sentencing order and remand for resentencing in a manner consistent with our holding
July 9, 2024 at 03:45 PM | Permalink
Comments
Anything that jacks up these sickos' sentences is ok by me.
Posted by: federalist | Jul 9, 2024 4:43:45 PM
Here's one to make 'unambiguously means “frame"' a bit complicated. Imagine instead of a regular movie, you present a slide show as a digital movie, showing each picture for some set amount of time. It would be possible to create such a file so that each slide really is one frame, just shown repeatedly, or it may be duplicated. Should the sentence in such a case really depend on the technical savvy of the creator?
Posted by: Soronel Haetir` | Jul 9, 2024 4:51:26 PM
federalist, after 30 years of prosecuting and defending, I have found that the "sickos" could be anyone's friends, neighbors, or family members.
Posted by: anon | Jul 9, 2024 5:27:43 PM
Not all the sickos are male either. Also, a lot of them are Republicans like Ms. Gabrielle Hanson and Mr. Dennis Hastart!
Posted by: william delzell | Jul 9, 2024 6:08:06 PM
anon --
"...after 30 years of prosecuting and defending, I have found that the "sickos" could be anyone's friends, neighbors, or family members."
That could be true if the kiddie porn involves a 17 year-old going at it with a 60 year-old. It is not true if a six year-old is being forced to have sex with an animal.
Posted by: Bill Otis | Jul 9, 2024 10:45:06 PM
william delzell --
Do you have any evidence that Republicans view more kiddie porn than Democrats? Because if you don't, and we both know you don't, your comment just seems like a mindless partisan cheap shot.
Posted by: Bill Otis | Jul 9, 2024 10:48:04 PM
When "moving pictures" were shot on film, there were literally "frames", or a series of individual exposures of film. How does one count "frames" when a "movie" is shot on "video tape", which has NO FRAMES, or as merely a collection of computer code when the "movie" is shot with a digital camera??
Posted by: Steve | Jul 10, 2024 9:25:07 AM
Bill Otis asks whether there's any evidence that Republicans view more kiddie porn than the Dems. Don't know about that, but I do think there's evidence that the Republicans have many more notable scandals involving the sexual abuse of minors than the Dems.
In 2006, Florida Rep. Mark Foley was forced to resign after it was revealed that he’d sent sexually explicit messages and propositioned teenage congressional pages via email and text.
In 2015, former Rep. Dennis Hastert, the longest-ever serving Republican speaker of the House and "family values" proponent, pleaded guilty to making illegal hush-money payments in order to cover up his history of sexually abusing high school wrestlers he had coached decades before. Hastert got 15 months. “Nothing is more stunning than having ‘serial child molester’ and ‘speaker of the House’ in the same sentence,” the judge said at his sentencing.
During and after the 2016 presidential race, among the dozens of women who accused former president Donald Trump of being a sexual predator were several contestants in the 1997 Miss Teen USA pageant, who reported that he barged into their dressing room while girls as young as 15 were changing. (Trump allegedly told them, “Don’t worry, ladies, I’ve seen it all before.”)His campaign denied the accusation, but CNN unearthed a 2005 Howard Stern interview where Trump bragged about walking into backstage dressing rooms at the pageants he ran. And of course he was found liable by a unanimous jury of sexually assaulting and defaming E Gene Carroll.
During the 2018 midterms, Alabama Senate candidate Roy Moore was accused of preying on girls as young as 14 and 16; the New Yorker reported that his habit of trying to pick up high schoolers was so notorious that it actually got him banned from a local mall.
Also in 2018, Rep. Jim Jordan, , became embroiled in a scandal over his time as a wrestling coach at Ohio State University, where a team doctor named Richard Strauss, who committed suicide in 2005, was found to have sexually abused more than 177 male student athletes. Numerous former wrestlers told reporters that Jordan was personally aware of the abuse during the early 1990s but chose to turn a blind eye. The Congressman simply denied having any knowledge of it—and suggested at least one of the accusers claiming otherwise was acting on a personal vendetta against him.
In 2022, Ruben Verastigui , a former GOP staffer and Republican National Committee aide admitted to being part of a ring that traded child pornography involving babies was sentenced to more than 12-and-a-half years in prison.
Rep. Matt Gaetz of Florida was the subject of a literal sex-trafficking investigation, which was looking into whether he had sex with an underage 17-year-old girl, among other issues. Gaetz has since been cleared (I think).
Of course Dems also have their “sickos.” who seek out or prey upon minors. Anthony Weiner went to jail for sexting a 15-year-old.
Posted by: anon | Jul 10, 2024 9:45:20 AM
anon, there was the Gerry Studds case . . . .
Posted by: federalist | Jul 10, 2024 10:00:44 AM
Now don't get me started on Republican perverts and hypocrites:
1. William Gleason, a Republican who held several positions in the Toms River borough including heading the Recreation Committee, has been arrested and held without bail for sexually assaulting a child.
2. Albert Benjamin Wharton, a Republican pastor at a conservative Baptist church, has been charged with 30 felony counts of child sexual abuse.
3. Cameron Cotrill, a Republican media minister at Center Pointe church in Ocean Springs, MS pleaded guilty to possession of Child Sexual Abuse Material.
Posted by: anon12 | Jul 10, 2024 10:24:26 AM
As for Republican hypocrites and perverts, let's not forget
longtime Republican state Sen. Ray Holmberg, 79, (retired) from North Dakota who pled guilty in federal court to traveling to Europe with the intent of paying for sex with a minor and with receiving images depicting child sexual abuse.
Posted by: anon4 | Jul 10, 2024 10:35:38 AM
Bill Otis, looks like your Republican friends who tout family values have a serious problem with sexual perversion.
Posted by: anon4 | Jul 10, 2024 10:38:20 AM
anon: The investigation of Rep. Matt Gaetz (R.-Fla) is continuing with the House Ethics Committee. The DOJ declined to prosecute Gaetz, saying they didn't think they had enough evidence to convict "beyond a reasonable doubt". The House Ethics Committee has continued the investigation and has apparently unearthed additional evidence, which they may turn over to the DOJ. The Ethics Investigation of Gaetz is continuing. One issue to note is that while the age of sexual consent if 16 in 32 states, Florida is one of the (mostly larger) states where the age of consent is 18. It is alleged that the girl Gaetz had sex with was 17, but the age of consent is 18. So, as to Rep. Matt Gaetz, stay tuned. Notably, since these allegations first surfaced, Rep. Gaetz has married a woman older than 18.
Posted by: Jim Gormley | Jul 10, 2024 11:48:18 AM
anon --
"Bill Otis asks whether there's any evidence that Republicans view more kiddie porn than the Dems. Don't know about that..."
OK, good, thanks. That answers the question I asked.
"...but I do think there's evidence that the Republicans have many more notable scandals involving the sexual abuse of minors than the Dems."
You could be right for all I know, but (1) anecdotal episodes don't get us anywhere in trying to figure out the incidence of X across the entire population, and (2) what winds up as a "scandal" -- i,e. a big media production -- depends more on the instincts of the editor than anything out there in the real world.
P.S. Please let me assure you that, when I worked in the White House, blue dresses were NOT in danger.
Posted by: Bill Otis | Jul 10, 2024 11:50:45 AM
Bill Otis: When you worked in the White House, what color of dresses WERE in danger?
Posted by: Jim Gormley | Jul 10, 2024 12:15:53 PM
I have no opinion on whether Democrats or Republicans are more perverted. But I do have an opinion on how easy it is to be falsely convicted of possessing child pornography. The state of computer security is dire. No Internet user who isn't an expert can be sure that their computer hasn't been "botnetted" by a crook, either to send vast amounts of spam or, far worse, to be turned into a darknet child porn server. That can get you convicted not just of possession but also of distribution. That often means life without parole.
Posted by: Keith Lynch | Jul 10, 2024 1:06:01 PM
Jim Gormley --
None, but not because I'm a paragon of virtue. It's more because GHWB never wore a dress (at least none that I ever saw).
Posted by: Bill Otis | Jul 10, 2024 1:18:30 PM
In response to one of Bill Otis's earlier replies to this above article, I didn't say whether The g.O.P. (Government Overreach Party) has more of its men and women committing child pornography than Democrats. I simply said that you DO have Republicans and FEMALE sex predators as you do in the other party. Gabrielle Hanson is a blatamt example of a person who is both female and Republican who groomed young girls for heterosexual male-on-female rape/prostitution. She rightfully did time for her crime in Texas, but attempted to cover up her criminal record when she ran unsuccessfully for mayor last year in Franklin, TN. Fortunately, she failed to primary the more moderate incumbent Republican who managed to beat her with a comfortable margin. Williamson County, the location of Franklin, TN, is the state's richest and probably the most conservative of Tennessee's 95 counties. The incumban't "crime" was in allowing a drag event to occur in the town in which Gabrielle Hanson attempted unsuccessfully to exploit.
Posted by: william delzell | Jul 10, 2024 6:16:20 PM
Well, anon, I see you didn't mention Joe Biden showering with his adolescent daughter, Ashley. Yuk
Posted by: federalist | Jul 10, 2024 6:41:10 PM
federalist --
At this stage of the game, I'm just glad Joe can still find the shower.
This guy is the Commander-in-Chief and the leader of the Free World. Yikes.
As for Cacklin' Kamala............https://ringsideatthereckoning.substack.com/p/what-about-bidens-disability-did
Posted by: Bill Otis | Jul 10, 2024 7:05:37 PM
The Dems keep most of their perverts in the teaching ranks. The Catholic Church had an issue with it at or even lower than the rates of the general public. The public school scandal is many times worse and goes unreported.
Posted by: TarlsQtr | Jul 10, 2024 10:14:36 PM
Isn't it funny, Bill, that a Democrat can have that history, and no one mentions it.
Posted by: federalist | Jul 11, 2024 12:00:01 PM
https://townhall.com/columnists/anncoulter/2024/07/10/columnistsanncoulter20240710scotus-girls-gone-wild-the-right-to-crap-in-the-streets-n2641687
The woman can turn a phrase . . . . not on the level of Mark Steyn . . . .
Posted by: federalist | Jul 11, 2024 12:03:33 PM
Doug (and Bill),
And now you know why I don't participate anymore. And this commentary is devoid of Blah.
Da Man
Posted by: Da Man | Jul 12, 2024 10:27:27 AM
Da Man --
I can hardly say I blame you. But it's a shame that people who are interested in law and know a lot about it get driven off by bile and partisan baloney.
Posted by: Bill Otis | Jul 12, 2024 11:36:37 PM
Da Man: it is always disappointing that so many people seek to use this space for all sorts of parisan, off-topic blather. Yet another sign of ugly times.
Posted by: Doug B | Jul 13, 2024 9:01:58 AM
Doug (cc: Da Man) --
It wasn't just "all sorts of partisan, off-topic blather."
What drove Da Man away was one thing: Blah and his relentless, toxic, vulgar, utterly substance-free postings.
I admire and mostly share your erring on the side of free speech, but when guttersnipe "speech" starts to drive away serious, informed speech, then IMHO it's time to drop the hammer earlier and more forcefully on the guttersnipes. If people can't show even minimal respect for the space they're using, they need to be ordered to find another space.
Posted by: Bill Otis | Jul 13, 2024 2:45:40 PM
Bill: Blah commented about 25 times total, rarely more than a sentence or two, and has not posted in over a week. Since Blah's last posting (meaning in just the last week), federalist has commented 20 times, and you have commented 30 times. The nuisance of Blah, particularly in this thread, does not seem to be the problem.
Indeed, Da Man expressly mentioned the fact that this was not about your nemisis, Blah ("this commentary is devoid of Blah"). But I realize, Bill, you do not think it critical to actual read what other people say before asserting what you think they are talking about. And that can present another risk of driving serious people away along with the parisan, off-topic blather. That said, I am always eager to echo a variation on your suggestion: "If people want to engage in parisan, off-topic blather, they should find another space."
Posted by: Doug B | Jul 13, 2024 3:34:08 PM
Doug --
1. You seem to be saying that my comments are comparable to Blah's. Is that what you actually think?
2. You also seem to be asserting that my comments are "blather." Is that what you actually think?
3. Blah offered nothing but hatefulness and insult. Would that also be a correct characterization of what I say here? Or anyone else for that matter?
4. You can't help knowing that it's not the number of comments but what they convey that makes the difference, right? So why do you imply that I'm no better than Blah, and perhaps worse, by going out of your way to note that I wrote a greater number of comments than he did? This is similar to the kind of thinking that implies the police are racist thugs because they shot X number of black males last year, without examining why or in what circumstances. Numbers standing alone are just flimsy stand-in's for an argument, that, if it were actually set forth in a fair-minded way and with reasons, would fall flat.
5. Da Man explains in this thread why he ALREADY DECIDED to leave. In the post where he announced that decision (no, I'm not going to go searching for it), he specifically pointed to Blah, not generalized "partisan blather." (Speaking of which, I must have missed your criticism of the several comments to a recent post, comments whose preposterous theme was that Republicans consume more kiddie porn that Democrats. This is not partisan blather??).
6. "But I realize, Bill, you do not think it critical to actual read what other people say before asserting what you think they are talking about."
One of the reasons I was a decently successful litigator is that I was able to tell the court what the defendant was ACTUALLY trying to push, as opposed to what he wanted to PRETEND to be trying to push. In your recent post about Judge and Chairman Reeves's writing, it was clear from his abstract by itself that, while some of his thoughts are outcome-neutral, the preponderance are defendant-friendly. I don't even know why -- other than to take a crack at me as oblivious and lazy -- you would bother to dispute this. Biden appointed him PRECISELY to help push the Commission in a liberal direction, and he's done exactly that. For me to understand this (as you also understand it) is neither laziness, partisanship nor blather.
7. "...I am always eager to echo a variation on your suggestion: 'If people want to engage in parisan, off-topic blather, they should find another space.,' "
If for any reason you want me to find another space, you have but to ask and I absolutely will comply. What I won't do is modulate my comments to genuflect in any form to the Defendants-Are-Wonderful, Conform-Your-Thinking-Or-Else consensus of legal academia, a demanded consensus that I find almost as dangerous as it is anti-intellectual and disgusting.
Posted by: Bill Otis | Jul 13, 2024 4:56:59 PM
Bill, I suggest you just focus on what is actually being said, not what you think "seems" is being said. Any and all comments in a debate over which party has more sex offenders in response to a post about Kisor's impact on the sentencing guidelines qualifies, in all respects, as "all sorts of partisan, off-topic blather." That is what I read Da Man to be referencing (though his comment came just after federalist and you turned to Prez Biden and VP Harris), so I said "it is always disappointing that so many people seek to use this space for all sorts of partisan, off-topic blather." And I said nothing about what Da Man thinks or what drove him away.
But then you decided you wanted to complain about Blah again, even though Da Man expressly noted there was no "Blah" in this thread. So I decided to highlight that Blah never posted all that much, and has not posted at all in over a week. I never said your "comments are comparable to Blah's," but I did say that commenting on what other people say and think without actually reading what they say presents another risk of driving serious people away.
I have not asked you to find another space, nor do I plan to. But I will continue to encourage everyone to try to find other spaces for partisan, off-topic blather. And I do agree it can be "anti-intellectual" when people spout talking points without seeking to read and intelligently engage with others' work.
Posted by: Doug B | Jul 13, 2024 6:55:20 PM
Does "federalist" have children? Any other relative?
Jackass "federalist" is apparently good with the ridiculous, idiotic, counterproductive sentences that Amerika's criminal regimes hand out for CP. So I pray that the next "sicko" who receives such a sentence is one of federalist's relatives, hopefully one of its demon spawn.
The "people" who love Amerika's obsession with punishment are the "people" who I want to be affected by it. If you sign up for it, I want you to suffer from it. For real.
Posted by: Will Allen | Jul 17, 2024 8:23:15 PM
