Friday, August 28, 2009

Probation Sentence in Child Porn Case Falls as Procedurally and Substantively Unreasonable

Earlier this year, the en banc Circuit directed in United States v. Tomko (Blog post here) that "if the district court’s sentence is procedurally sound, we will affirm it unless no reasonable sentencing court would have imposed the same sentence on that particular defendant for the reasons the district court provided." This week, in United States v. Lychock, No. 06-3311, a panel flunks a sentence under that standard. The defendant, following conviction for possessing between 150 and 300 images of child pornography, had been placed on five years' probation and fined $10,000 when the Guidelines range was 30 to 37 months’ imprisonment. The Court vacates the sentence as both procedurally and substantively unreasonable.

Two leading factors in the Court’s analysis appear to have been the sentence of probation and the defendant’s apprehension in a "wider investigation into an international child pornography enterprise," which has led to the sentencing of numerous defendants in the District of New Jersey for very similar offenses. In an opinion by Judge Roth, the Court did not offer any general remarks concerning how probation figures within the rubric of sentencing purposes identified in 18 U.S.C. § 3553(a). It did, however, repeatedly describe the defendant’s sentence with phrases such as "so far below the range suggested by the Guidelines." Considering the "significant deviation," the Court held the district judge’s explanation insufficient and the sentence therefore procedurally unreasonable. With respect to substantive unreasonableness as well, the Court explained that the "extent of any variance from the Guidelines range" must be taken into account.

The significance of the international investigation’s netting of numerous New Jersey child pornography defendants relates to § 3553(a)(6)’s directive that district courts consider the need to avoid potential sentencing disparities among similarly situated individuals. The Third Circuit notes that the government "highlighted the within-Guidelines sentences several RegPay defendants had already received from other judges of the District Court." Because the sentence here was "far below the sentences given to similar offenders, consideration of this disparity deserves particular care." In this connection, the Court finds still to be instructive its 2007 child pornography precedent in United States v. Goff (Blog post here), quoting that opinion in concluding that the district court "did not give the Guidelines the consideration they are due."

Lychock also emphasizes that district judges must offer greater than usual elaboration when imposing non-Guidelines sentences on the basis of policy disagreements with the Sentencing Commission. Such disagreement "is permissible only if a District Court provides sufficiently compelling reasons to justify it." Here, the core of the district court’s policy analysis appears to have been that the "kind of psychological problem in persons who are drawn to this kind of material … is not going to be deterred by a jail term for an internet porno observer." The Circuit dismissed that analysis as a "conclusory statement of personal belief."

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