Monday, April 20, 2009

Substantive Reasonableness Review Survives: Panel Reverses Below-Guidelines 6-Year Sentence in Child Porn Case as Greater than Necessary

Congratulations to Andrea Bergman and others at the FPD for the District of New Jersey! In United States v. Olhovsky, __ F.3d __, 2009 WL 1014482 (3d Cir. Apr. 16, 2009), a panel of the Third Circuit reversed a six-year sentence for a child porn offender as procedurally and substantively unreasonable, remanding for imposition of a LOWER sentence. The panel held that the district court erred in not granting a subpoena for Olhovsky’s treatment provider to testify, failed to consider mitigating evidence, and imposed a harsher than necessary sentence (even though the sentence was below-Guidelines).

Olhovsky was barely 18 at the time of his arrest, and had a very sad background, including severe birth defects, divorced parents, and a disabled mother. He was bullied and teased at school, and spent much of his time alone in his room with a computer. He was so depressed and suicidal that the was admitted to a psychiatric facility and had cut himself with a knife. He traded child pornography on a website that was infiltrated by the FBI, and was found to have over 600 images stored on his computer, including photographs of prepubescent children engaged in sex with adults. He had been viewing child pornography since he was 15. He admitted his involvement, waived indictment, and pleaded guilty.

During his pretrial release, he participated in mental health counseling and sex offender treatment through Pretrial Services. His treatment provider wrote a letter – the first of its kind he had ever written – extolling Olhovsky’s progress in treatment, explaining that his offense was motivated primarily by isolation and immaturity, and urging a non-prison sentence for Olhovsky’s protection and to prevent regression. Olhovsky’s attorney sought to call the treatment provider at sentencing, but Pretrial Services threatened that the provider’s contract would be canceled if he assisted the defense, unless he were subpoenaed. The district court refused to grant the subpoena, under the mistaken belief that the law did not authorize compelling the testimony of an expert and because live testimony was unnecessary since the provider had submitted the letter.

In imposing sentence, the district court emphasized the harm that trading child pornography inflicts. It expressed concern that Olhovsky could "turn around and become again a predator – a pedophile monster," despite the letter from the treatment provider and similar findings by other experts. As the Third Circuit said, "[i]t is not at all clear what (if any) basis the court had for making [that statement] . . . . In fact, the entire record is to the contrary."

The Subpoena. The Third Circuit found it "clear that the district court committed legal error in concluding that it could not subpoena [the treatment provider]." The error was not harmless, given the district court’s concerns about public safety and recidivism. "[W]e will not ignore," the Court said, "the potential force of a conversation with a treating psychologist specializing in the treatment of sex offenders who had been treating Olhovsky for almost two years."

Procedural Reasonableness. Because the district court failed to meaningfully consider all of the 3553(a) factors, the Court found the sentence procedurally unreasonable: "Here, it is not at all apparent that the court actually considered the lengthy, very specific and highly positive reports of any of the three defense experts . . . . [W]here, as here, the record strongly suggests that some of the statutorily prescribed sentencing factors were ignored, we cannot conclude that the resulting sentence was reasonable."

Substantive Reasonableness. The Court found that the district court "was so appalled by the offense that it lost sight of the offender." While it acknowledged that a prison sentence could be reasonable because trading child pornography is an extremely serious crime, six years was too much: "Given the factual and procedural error here, it was substantively unreasonable to sentence Olhovsky to six years imprisonment." The Court remanded for imposition of "a reasonable sentence based upon all of the § 3553(a) factors, including the ‘overarching’ principle of parsimony."

NOTE: This opinion was written by Judge McKee, who was in the majority in Tomko, but joined by Judge Rendell, who was in the dissent. (The third member of the panel was Judge Tashima, of the Ninth Circuit.)

PRACTICE TIP: Even if you have a less sympathetic defendant, consider seeking a below-Guidelines sentence on the basis that the Guidelines lack any empirical foundation. This argument is presented in great detail in a paper by AFPD Troy Stabenow, which is available on Many courts around the country have granted variances based on the irrationality of the child porn guidelines alone.

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