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Judicial Criticism of Child Pornography Sentencing Guidelines Continues

By Brian A. Zemil, Litigation News Associate Editor – January 11, 2011

The U.S. Court of Appeals for the Third Circuit has issued an opinion [PDF] highlighting the continuing controversy surrounding application of child pornography sentencing guidelines mandated by Congress. United States v. Grober. The district court had ruled that a key guideline was flawed because it was not based on empirical data and led to sentences that were too severe in a “typical downloading” case.

The appellate court upheld the district court’s “sufficiently compelling justification” for not applying the recommended sentencing range found in the guidelines. The appellate court noted that U.S. Sentencing Guideline Section 2G.2.2 was not “developed pursuant to the [U.S. Sentencing] Commission’s institutional role and based on empirical data and national experience, but instead was developed largely pursuant to congressional directives.”

The District Court’s Criticism of the Guidelines
In the underlying case, the defendant pleaded guilty to possession and transfer of child pornography using the Internet. After a 12-day hearing and “thousands of pages of transcript and briefing,” a district judge for the U.S. District Court for the District of New Jersey imposed the statutory mandatory minimum sentence of 60 months, rather than a sentence within the guideline range of 235–292 months.

The district court’s 46-page opinion explained its decision to deviate from the guidelines and its concerns about the lack of empirical data to justify the sentences set forth in the guidelines—criticisms that other district courts have echoed. Concerned about the recent upward enhancements mandated by Congress that were made without the typical input from the Sentencing Commission, the district court pointed out that the guidelines routinely result in sentences at or above the 20-year statutory maximum regardless of whether a defendant has personally exploited a child.

The district court also held Section 2G.2.2 was flawed because the enhancements found in the guideline were essentially inherent in the crime itself and promoted sentencing disparities. The district court concluded that the guidelines could not be given deference because they would produce an “outrageously high” sentence that was “too severe in a downloading case.”

The Third Circuit Affirms the District Court
Even though it did not challenge the reasonableness of the sentence imposed, the DOJ nonetheless argued on appeal that the district court had committed procedural errors that amounted to an abuse of discretion. In a 2–1 decision, the Third Circuit rejected those arguments. The appellate court complimented the district court’s analysis of the nature, circumstances, and seriousness of the offense and its evaluation of victim impact evidence.

The Third Circuit held that the district court’s justification for imposing a sentence outside of the range found in the guidelines was “sufficiently compelling” and “well-grounded.” The court also determined that the district court’s decision was strongly supported by numerous decisions in which other federal courts similarly criticized the guidelines.

The court noted that the Second Circuit had, subsequent to the district court’s decision, also criticized Section 2G.2.2 as “fundamentally different” from other guidelines because it was not developed by the Commission through an “empirical approach.” Instead, the Commission amended it “repeatedly at the direction of Congress.” United States v. Dorvee.

The Second Circuit also criticized the guideline because many of the enhancements provided in it would apply in almost all cases. Because Section 2G.2.2 does not distinguish between “run-of-the-mill” offenders and the most dangerous offenders, the Second Circuit did not find it “worthy of the weight afforded” to other guidelines. The Third Circuit held that the Second Circuit’s decision in Dorvee supported the district court’s analysis.

Kenneth C. Pickering, Worcester, MA, cochair of the ABA Section of Litigation’s Criminal Litigation Committee says that, “since the Supreme Court decision in United States v. Booker, the guidelines are no longer mandatory and instead provide a framework for courts to make sentencing decisions ultimately governed by the reasonableness standard codified in 18 U.S.C. § 3553.”

“If the guidelines and every sentencing enhancement were treated as mandatory, sentences could easily become unreasonably high and disproportionate,” says Stacey F. Gottlieb, Phoenix, AZ, cochair of the Section of Litigation’s Criminal Litigation Committee. That result “would tend to undermine fundamental notions of due process, as well as Sixth and Eighth Amendment considerations,” she adds.

When a district court varies from the guidelines, however, it must provide a reasoned, coherent, and compelling explanation for the basis for its disagreement. Although the Third Circuit emphasized that the guidelines must continue to be the starting point for any district court’s sentencing calculations, it held that the district court was justified by its “policy disagreement” to vary from those guidelines.

For Gottlieb, “this case illustrates that, if a court departs from the guidelines on the basis of policy disagreement, it must provide a thorough, reasoned, and sufficiently compelling explanation of the basis for doing so, consistent with the goals of 18 U.S. C. § 3553(a). The Third Circuit concluded that the trial court did that here.”

Pickering views the decision as “correcting the imbalance found in the sentencing guidelines that lack empirical support as they relate to child pornography.” He believes “other courts will likely follow the court’s reasoning.” He cautions, however, that “the court’s repudiation of the guidelines in this specific area is not applicable to other existing guidelines.”

The Dissenting View
The dissenting judge in Grober expressed concern that the district court’s “nullification” of Section 2G2.2 and “wholesale rejection” of all things relating to it blinded the district court to the specific aggravating factors in the case before it. These aggravating factors included the number of images downloaded and the fact that the defendant distributed images to other persons.

“Crime victims and other members of the public expect the judiciary to follow the law of the land rather than to substitute the court’s opinion of what it believes the law should be,” says Russell P. Butter, Upper Marlboro, MD, cochair of the ABA Criminal Justice Section’s Victims Committee.

“When the judiciary acts on its own to put its best spin to justify its decision contrary to Congressional direction, justice is not served,” he says. “The Supreme Court will likely need to determine the scope of judicial deference regarding the guidelines and whether, as here, there can be a wholesale rejection of the guidelines—highlighting a separation of power issue, namely the judiciary’s failure to meaningfully apply the applicable Congressional policy.”

Keywords: litigation, sentencing guidelines, court of appeals, third circuit, United States v. Grober

Related Resources

  • » United States v. Grober, 595 F. Supp. 2d 382 (D. N.J. 2008).
  • » United States v. Dorvee, 616 F.3d 174 (2d Cir. 2010).
  • » United States v. Grober, 2010 U.S. App. LEXIS 21980 (3d Cir. N.J., Oct. 26, 2010).
  • » Mark Hansen, A Reluctant Rebellion.
  • » U.S. Sentencing Commission, A History of Child Pornography Guidelines [PDF].


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