Tuesday, September 04, 2007

Downward Variance Reversed, Held Procedurally and Substantively Unreasonable

In United States v. Goff, No. 05-5524 (3d Cir. Aug. 30, 2007), the panel unanimously held both procedurally and substantively unreasonable a four-month below-guideline sentence in a possession of child pornography case.

As part of a wider investigation into an international child pornography enterprise, Goff’s home was searched and two computer hard drives were seized. A few images were found on one of the drives, but the other contained hundreds of images in the “deleted” file. Goff pleaded guilty to a single count information charging possession of at least 3 images of child pornography. Included in the PSR, and apparently adopted by the DCT at sentencing was a Guideline range of 37 to 40 months, which included 5-level increase in the offense level for possession of more than 600 images (§2G2.4(b)(5)(1)).

Defense counsel sought a variance from the guidelines arguing that they were substantially in excess of that warranted by the offense, given all but a few pictures had been deleted and many were likely duplicates. Counsel also emphasized Goff’s otherwise law-abiding life, employment history, community involvement, and volunteer activities in a number of charitable causes. Counsel further argued that the offense was a solitary one – confined to the defendant’s home while alone – and that a psychiatrist had found he was not a danger to the community and not a pedophile. The district court agreed and sentenced Goff to 4 months imprisonment. The court noted that it had considered the guideline range, the psychiatrist’s letter, numerous letters of support, Goff’s lack of criminal history, and his otherwise “exemplary” life.

The Third Circuit held that the four-month sentence was both procedurally and substantively unreasonable, finding that the district court’s decision failed to reflect the required analysis of the factors set out in §3553(a). Further, even if all the §3553(a) factors had been considered, a four-month sentence could not be justified under the circumstances of the case.

The procedural errors occurred at Gunter’s first and third steps. First, the district court failed to address defense counsel’s argument that the 5-level increase (for 600+ images) should not apply, (although it was couched as an argument for variance, the court felt it was also in part an objection to the guideline calculation). The government has since conceded that many of the deleted files were duplicates and only a 4-level enhancement, (for 300-600 images), should apply.

With respect to the third step, the Circuit found that the district court failed to mention §3553(a) or explain its consideration in imposing sentence. The district court missed several factors including the seriousness of the offense, deterrence, and the need to avoid unwarranted disparities – which it found particularly important given how low the sentence was compared to similar offenders. This procedurally flawed approach, the Circuit stated, “put at risk the substantive reasonableness of any decision”.

Substantively, the Circuit found the guidelines were given “short shrift” and noted that Rita’s presumption of reasonableness supports this Circuit’s position that a within-range sentence is more likely to be reasonable. In addition, the district court failed to adequately account for the nature and circumstances of the offense, the seriousness of the offense, promotion of respect for the law, and just punishment (§3553 (a)(1)(2)(6)).

The Circuit seemed to take particular umbrage at Goff’s characterization of the offense as a solitary activity, pointing out that mere possession of child pornography is an ongoing victimization of the children involved and creates a market for the industry. The court also found that Goff’s lifestyle and lack of criminal history were not unique and plainly within the “heartland” of these cases.

Finally, the court compared this sentence to a New Jersey case arising from the same investigation in which the defendant received 28 months from a guideline range of 27–33, thus creating an unwarranted disparity. The Court points out, in a footnote, that while the judge may have a “sincerely held policy disagreement” with the weight of a sentence called for by the Guidelines, “policy disagreements are not a basis for bypassing the Guidelines,” citing United States v. Ricks.

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The District Court's indication of the sentence it would impose before the defendant allocuted was not reversible plain error.

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