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Jan 2012
25

Sentencing in Federal Child Porn Cases – Will Any Departure Outside the Sentencing Guidelines be Upheld by the Sixth Circuit Court of Appeals?

A new opinion from the Sixth Circuit Court of Appeals highlights that the battle continues to rage over the proper sentence for a defendant convicted of a “true” possession of child pornography offense, where there is no evidence that the offender shared or distributed any child pornography or committed any actual acts of abuse against any children.

In United States v. Bistline, the defendant pled guilty to knowingly possessing 305 images and 56 videos of child pornography on his computer. Many of those images and videos depicted adult men having sex with 8 to 10-year-old girls.

Under the federal sentencing guidelines, the defendant’s recommended sentence was 63 to 78 months’ imprisonment. The District Court found that the Sentencing Guidelines pertaining to Mr. Bistline’s child porn conviction were “seriously flawed” for a number of reasons – including disparity with other, more serious crimes. The District Court deviated a downward from the Sentencing Guidelines’ recommended sentence: to a non-custody sentence of 10 years supervised release, with very stringent terms including registration as a sex offender, surrendering aDNA sample, random drug testing, and submission to random home searches. The district court’s variance from the guidelines was based on the disparity of the guidelines for true possession of child-pornography cases, as well as other concerns regarding the offender and the offense. Important to the “offender” criteria was Mr. Bistline’s age, health concerns, and that he was the primary caregiver of his mother. The District Court also emphasized the offense characteristics specific to child porn – including the fact that mere possession of child pornography was not nearly as serious a crime as manufacturing or producing such material.

A panel of the Sixth Circuit Court of Appeals reversed the sentence, finding that the sentence imposed by the District Court judge was “substantively unreasonable.” The Court found that the district court’s reasoning was “seriously flawed,” in that it found fault with Congress’s active role in crafting a sentencing guideline themselves to severely punish child-pornographer possessors, instead of the usual mechanism of delegating that authority to the Judicial Sentencing Commission. Further, the Sixth Circuit panel chastised the trial court for labeling the harsh penalty created for this crime on the political machinations of the legislature. And it disagreed with the trial court that the child pornography guideline was arrived at without proper deliberation, empirical study, and data.

The Appeals panel did correctly note that the Sentencing Guidelines are advisory only. This has been true since the United States Supreme Court ruled, in United States v. Booker, that the original, mandatory nature of the guidelines was unconstitutional. Since Booker, the Supremes have further held, in Gall v. United States, that sentencing decisions “inside, just outside, or significantly outside the Guidelines range” must be reviewed with an “abuse of discretion” standard, the highest level of deference to the trial court. Justice Stevens, in his concurring opinion in Gall, wrote that “the Booker opinion made it pellucidly clear that the familiar abuse-of-discretion standard of review now applies to appellate review of sentencing decisions.” Put another way, this standard of review does not allow the appellate court to substitute its judgment for that of the district court. As the majority opinion in Gall explained: “The fact that the appellate court might reasonably have concluded that a different sentence was appropriate is insufficient to justify reversal of the district court.” But this is exactly what this Appeals panel did: it decided the sentence imposed on Mr. Bistline was incorrect based on its own belief of what a proper sentence should be.

Important to the panel’s decision was the District Court’s belief that the applicable sentencing guideline was improper. The District Court reasoned that prison time was improper because Mr. Bistline was merely an end user, i.e. he was not a producer or distributor of child pornography; he was unlikely to re-offend; and that incarceration would be a particular burden to he and his family. Ignoring precedent from both the United States Supreme Court and from the Sixth Circuit itself, the Appeals panel disregarded the District Court’s reasons for disputing the applicable guideline. As the Sixth Circuit held in United States v. Herrera-Zuniga, “sentencing judges possess the authority to categorically reject the sentencing range prescribed by the Guidelines, even in a mine-run case where there are no particular circumstances that would otherwise justify a variance from the Guidelines’ sentencing range.” Finding that an applicable guideline is inappropriate can be based solely on the court’s “policy disagreement” with lawmakers who proposed and adopted the guideline. The United States Supreme Court announced this rule in 2007 in Kimbrough v. United States, and reaffirmed its position as late as 2009 in Spears v. United States.

Regardless of the sentence Mr. Bistline ultimately receives (he will be resentenced soon), this decision is poor precedent. The district court’s sentencing opinion was thoughtful, well researched, and clearly articulated the reasons that the district court departed outside the guidelines. It suggests that any sentence outside the guideline range on a federal child pornography case will be found to be “substantively unreasonable.”

Mark A. Satawa is a partner at Kirsch & Satawa (www.kirschandsatawa.com), PC in Southfield, MI. He practices in the area of criminal defense, specializing in defending sex crimes, child molestation, internet stings, and child pornography. He is a contributing author in the book, INSIDE THE MINDS: STRATEGIES FOR DEFENDING INTERNET PORNOGRAPHY CASES (Aspatore 2008). (http://www.aspatore.com/store/bookdetails.asp?id=795)

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