Roughly, 95 to 97 percent of federal defendants plead guilty. Perhaps that explains why criminal trials, and their ensuing verdicts, attract the most public attention and scrutiny.


Sentencing is treated like some inconsequential procedural necessity when in most cases, given these statistics, it is often the most important aspect of a criminal case.  It is unfortunate that many lawyers and judges often give sentencing such short consideration.


Sentencing Reform


Currently pending before Congress is the Sentencing Reform and Corrections Act of 2015 whose purpose is to bring about badly needed reforms in both sentencing and corrections. There is increasing public and political support for eliminating harsh mandatory minimums in the federal sentencing scheme, especially in drug cases.


Sentencing in Child Pornography Cases


Fashioning the appropriate sentence in a criminal case is one of the more difficult tasks faced by a criminal court judge. This is especially true when federal judges are called upon to sentence defendants in child pornography cases.


This point was excellently illustrated by Stephanie Francis Ward in an article posted in the ABA Journal on August 1, 2015. Ms. Ward called attention to a child pornography case in which Northern District of Ohio U.S. District Court Judge James S. Gwin polled the jury that convicted Ryan Collins for possessing 19 videos and 93 images of child pornography on his computer about what jurors thought would be an appropriate sentence for the defendant.


Federal Sentencing Guidelines Out of Touch with Societal Norms


On average, the jurors recommended a 14-month sentence. Judge Gwin sentenced the defendant to five years, significantly less than the 20-year sentence recommended by the Government.


Iowa U.S. District Court Judge Mark W. Bennett recently told The Marshal Project:


“Every time I ever went back in the jury room and asked jurors to write down what they thought would be an appropriate sentence, every time—even here, in one of the most conservative parts of Iowa, where we haven’t had a ‘not guilty’ verdict in seven or eight years—they would recommend a sentence way below the guidelines sentence. That goes to show that the notion that the sentencing guidelines are in line with societal mores about what constitutes reasonable punishment—that’s baloney.”


Sentencing Guideline are Baloney


Some federal judges don’t see it that way. They go above and beyond the recommended guidelines sentence to fashion a sentence that reflects their harsh view of child pornography defendants.


That’s what happened in June 2013 when District of Columbia U.S. District Court Judge Richard J. Leon sentenced 51-year-old James Wendell Brown to 144 months in prison following a guilty plea to one count of distribution of child pornography based on the Internet transmission of three photographs.


18 U.S.C. § 2252A (b) (1) set forth a 5 year minimum to a 20-year maximum for Brown’s conduct.


3553 Factors for Determining Sentence


The Sentencing Reform Act of 1984, codified in 18 U.S.C. § 3553, imposes certain mandatory procedural obligations on federal judges in sentencing. One of the more important of these obligations is that the judge fully explain, on the record, the reasons for his or her sentence. The extent of the explanation necessary is generally measured by the actual sentence imposed compared to the one advised by the U.S. Sentencing Guidelines.  In other words, the more the judge departs from the suggested guideline sentence the more the judge should make findings explaining the sentenced.


In 2007, the U.S. Supreme Court in Gall v. United States specifically said that when a term of incarceration is imposed that is outside the Guidelines range, the sentencing judge “must consider the extent of the deviation and ensure the justification is compelling to support the degree of variance.”


More significant, the Supreme Court instructed federal sentencing judges that they had to, in open court, state “the specific reason for the imposition of a sentence” from the one recommended by the Guidelines.


Judge Leon did not follow this edict. He elected to go outside the Guidelines in the Brown case. He had strong feelings about this case.


Bad facts make Bad Sentences


In March 2012, Brown got involved online with an undercover detective with the D.C. Metropolitan Police Department who had created the persona of a father with a 12-year-old girl he was shopping about. After exchanging emails and instant messaging conversations, Brown sent the detective three photographs depicting adults engaged in sexual acts with children. He told the detective he wanted to have the same kind of sex with his 12-year-old fictional daughter.


Brown also told the detective’s persona that he had sexually abused his three-year-old granddaughter. And the U.S. Attorney’s office subsequently learned that Brown had also sexually abused his own daughter when she was also three years of age.


The U.S. Sentencing Guidelines advised that a sentence of 97 to 121 months be imposed.


The Government pushed for a 97-month sentence because of the seriousness of the offense.  The defense counsel argued for a downward variance based on the fact that many federal judges now view the Guidelines in child pornography cases as driven more by Congressional politics than the kind of empirical data utilized by the Sentencing Commission to formulate guidelines in other kinds of case.


After Judge Leon stated for the record that there was “no chance, zero, that [he] would vary below the guideline range” and suggested that defense counsel should focus arguments on how the “low end” sentenced advocated by the Government made sense.  The defense counsel then joined the government in advocating for the 97-month minimum advised by the Guidelines.


Judge Leon was not moved by either argument. He said the only reason he was not going to impose a sentence very high “over and above the guideline range” was because Brown had pleaded guilty. He stressed that Brown was a danger to society who engaged in conduct that “we don’t normally get around here.”


Judge Makes Upward Variance


Before invoking the 144-month sentence, the judge addressed several § 3553 factors: protect the public, deter Brown and others, and make sure Brown was punishment for the seriousness of his offense. The judge then stated in open court:


“In my judgment, this is one of those unusual cases that requires a variance upward. In my judgment, 121 is not enough. A higher sentence is warranted here to reflect the seriousness of your conduct, to punish you appropriately, to protect the public and to deter others who may be similarly inclined.”


Did Court Provide Adequate Explanations for Above Guideline Sentence?


Whether or not the upward variance was warranted was not an issue that concerned the D.C. Court of Appeals when it vacated Brown’s sentence on December 15, 2015. The only issue of concern for the appeals court was whether Judge Leon had provided adequate in-court and written explanations for the “unsought above-Guidelines sentence.”


The court found he had not.


“During his in-court explanation of the sentence,” the appeals court said, “the trial judge several times asserted that he was imposing an above-Guidelines sentence ‘to reflect the seriousness of [Brown’s] conduct, to punish [Brown] appropriately, to protect the public, and to deter others who may be so inclined.’ … ‘But [as we have explained] mere recitation of § 3553(a) factor[s] without application to the defendant being sentenced does not demonstrate reasoned decision making or provide adequate basis for appellate review.’ … Moreover, contrary to our instruction in Nicely, and in direct contradiction to § 3553(c)(2), the District Court never articulated the ‘specific reason’ why he found Brown’s ‘conduct more harmful or egregious than the typical case’ accounted for in the properly calculated Guidelines range of 97 to 121 months. Nor could it, at least based on the descriptions of Brown’s criminal conduct contained in the in-court and written explanations of the sentence.”


In this case the Government recommended a sentence 47 months lower than the one later imposed by Judge Leon. That some judges consistently go above and beyond the suggested guideline sentence, as well as above the Government’s sentencing recommendation, in child pornography cases is why child pornography defendants represent the largest percentage of the 3 to 5 percent of federal defendants who plead not guilty and choose to face a jury. They feel they really have nothing to lose by going to trial; and in some courts, before some judges, they don’t.