A SENTENCE TO STATUTORY MAX 30 YEARS - MORE THAN DOUBLE THE GUIDELINE RANGE AND DESPITE A 5K1.1 MOTION - AFFIRMED

In United States v. Larkin, No. 09-2619 (M.D.PA 12/10/10), the Court of Appeals affirmed Ms. Larkin’s sentence to the statutory maximum of 360 months imprisonment followed by a life term of supervised release.

Ms. Larkin traded sexually-explicit photographs/videos of her minor children, B.L. and M.M., over the internet in exchange for money. She was subsequently charged with one count of production of a sexually explicit visual depiction of a minor, 18 U.S.C. § 2251(a), amongst other counts. Larkin entered a guilty plea pursuant to a plea agreement to this count alone (the rest were dismissed). Pursuant to the plea agreement, the Government moved for a downward departure under § 5K1.1 for Ms. Larkin’s substantial assistance to law enforcement authorities. Additionally, the plea agreement outlined a projected guideline range of 121-151 months imprisonment. Prior to sentencing the United States Probation Office calculated a higher guideline range than the plea agreement contemplated as it added 2 levels for “use of a computer” under § 2G2.1(b)(3) (2003), it found there were two victims (not one) and because of the calculation that Ms. Larkin was a CHC II (not a CHC I as contemplated by the plea agreement). Despite the plea agreement, the Government made arguments in support of the probation office’s positions. After objections, including that the Government violated the plea agreement, the district court did not apply the 2 level enhancement. The district court did, however, agree that there were two victims (i.e. both of Larkin’s children) and that it could consider their mental health evaluations. And, finally, the district court did not find the Government breached the plea agreement when it briefed in support of the U.S. Probation Office’s positions.

Prior to sentencing and despite the Government’s 5K1.1 motion for downward departure, the Court asked the parties to brief possible upward departures. Thereafter, the Court issued its opinion that it intended to upwardly depart. At sentencing, the Court sentenced Ms. Larkin to the statutory maximum 30 years imprisonment with lifetime supervised release.

On appeal, Ms. Larkin raised four issues: 1) Whether the photographs of her one child, B.L., qualified as “sexually explicit” under 18 U.S.C. § 2256(2)(B)(iii) which therefore qualified her as a second victim; 2) Whether the Government’s conduct violated the terms of the plea agreement; 3) Whether the district court violated the ex post facto clause when it upwardly departed five levels; and 4) Whether Larkin’s sentence was reasonable.

First, the Court of Appeals held that the photographs of B.L. were “sexually explicit” because they were “graphic or simulated lascivious exhibition of the genitals or pubic area of any person” under 18 U.S.C. § 2256(2)(B)(iii). In analyzing 5 photographs, the Court applied the “Dost test” which is a 6-factor test (looks at whether there’s a focus on genitalia, sexual suggestiveness, pose, nudity, sexual coyness, intended to elicit a sexual response) in determining whether a depiction is of “lascivious conduct.” See United States v. Dost, 636 F.Supp. 828, 832 (S.D.Cal. 1986). In applying this test, the Court analyzed each photograph individually and discussed each factor. While in large part the photographs satisfied few of these factors or they were “close calls,” the Court often fell back on factor 6 - that the photographs were “engineered to elicit a sexual response” of their “target audience” - and therefore qualified es “sexually explicit.”

Second, the Court of Appeals held the Government did not violate the terms of the plea agreement. Applying a contract law standard of analysis, the Court considered “whether the government’s conduct falls within the range of expectations reasonably understood by Larkin when she entered her guilty plea.” The Court engaged in a three-step process: 1) review the relevant portions of the plea agreement as compared to the allegations of impropriety by the government; 2) evaluate the conduct and determine if it is violative of the plea agreement; and 3) if there is a violation, fashion an appropriate remedy. The plea agreement contemplated a specific guideline range and cited particular enhancements that did and did not apply. For example, the government agreed that the 2 level enhancement for use of a computer did not apply. Yet, when probation said it did apply and the government argued pre-sentence for its application. The government also provided the probation office with psychologist reports that were in support of an upward departure. The government also filed briefs in response to the court’s request regarding upward departures. Larkin asserted this (among other things) was a breach of the plea agreement. Despite Larkin’s arguments that the plea agreement terms were breached, the Court of appeals disagreed. The Court cited specific language in the plea agreement which stated that, in effect, the government would provide all information to the court and the probation office that was relevant to sentencing factors and was not limited in its response to court requests for briefing. So, in effect, the government drafted a plea agreement with Larkin and agreed to certain terms. Yet, when the probation office mentioned the possibility of an upward departure, the government simply “obliged” by giving them the no doubt unfavorable psychological report which supported the upward departure. Then when the Court requested briefing on the upward departure the government’s response was not considered “advocacy” but rather it was considered an “assessment of the law and the relevant facts that would support the application of the enhancement.” As a result, the Court of Appeals decided the government had not crossed the line.

Third, the Court of Appeals held that the district court did not violate the ex post facto clause when it upwardly departed five levels based on a 2009 amendment to the Sentencing Guidelines (Larkin committed the offense in 2002 and was sentenced in 2009). The district court found the 2002 Guidelines did not consider the severity of Larkin’s conduct and therefore departed upward by 5 levels under the 2009 Guidelines, § 5K2.0. The district court did so citing the fact that the 2009 guideline specifically contemplated enhancements for the identified conduct. Yet, while the Court of Appeals held that direct application of an amended guideline to conduct that occurred prior to the amendment offends the ex post facto clause, “analogizing” to the amendment does not.

Fourth, the Court of Appeals held that Larkin’s sentence was reasonable. The bulk of Larkin’s argument in this regard centered on the disparity in sentences between she and her co-defendant who received the same sentence despite the fact that she provided substantial assistance. Finding no procedural errors, the Court cited Gall, in holding that, although the appellate court might “reasonably have concluded that a different sentence was appropriate” that is “insufficient to justify reversal.”