Federal Judge Struggles with Reasonable Sentence in Child Pornography Case
Representing individuals accused of possessing child pornography is difficult. Any misstep could mean years in prison, an often unnecessary outcome. Mental health experts understand that there is a significant difference between the individual who simply views illegal pornography and those who act out upon this impulse. It is vitally important for any lawyer who represents individuals charged with this type of offense to immediate assess which type of offender they are dealing with, assuming the facts prove a violation of the law, and immediately begin the process of setting the ground work for a successful defense.
Sentencing in Federal Court
U.S. District Court judges enjoy substantial discretion when fashioning the appropriate sentence in a criminal case. However, Section 3553a of Title 18, United States Code, imposes constraints on the judge’s sentencing authority. He or she is required to consider seven sentencing factors set forth in the statute: 1) the nature and circumstances of the offense; 2) the general purpose of the 1984 Sentencing Reform Act; 3) the kind of sentences available; 4) pertinent policies established by the U.S. Sentencing Commission (a product of SRA); 5) the need to prevent disparities in sentencing; 6) the need to provide restitution to the victim; and 7) the applicable sentencing range recommended by the Guidelines.
Between 2005 and 2007, the U.S. Supreme Court handed down a trilogy of cases that dramatically changed the very nature of Federal sentencing. The first of those cases was the 2005 decision, United States v. Booker, which held that the U.S. Sentencing Guidelines are advisory, not mandatory as they had been historically considered by federal judges. The second case was the 2007 decision, United States v. Rita, which replaced the de novo standard of appellate review of sentences with an “abuse-of-discretion” review that became known in all the Federal circuits as the “reasonableness” review. The third case, United States v. Gall, also rendered in 2007, effectively said this new standard of review authorized the appellate courts to review sentence for both procedural and substantive reasonableness.
In effect, this sentencing guidance offered by the Supreme Court granted the Federal circuits the authority to review Federal sentences to determine if they are unreasonably harsh or unreasonably lenient. Thus, while Booker made the Guidelines advisory, Rita and Gall imposed “reasonableness” constraints when a judge elects to depart up or down from the Guidelines.
This brings us to the case of United States v. Robinson decided by the Sixth Circuit Court of Appeals on February 18, 2015. Rufus Robinson plead guilty in a U.S. District in Michigan to possessing more than 7,000 images of child pornography—a violation of Section 2252A(a)(5)(B) of Title 18. The Guidelines, incorporated in a Presentencing Report, recommended a sentence within a 78 to 97 month range. The judge considered not only the recommendations of the PSR but the Section 3553a factors. In this context, the judge gave particular attention to reports by psychologists that Robinson did not exhibit pedophilia characteristics based on the level of his anti-social personality, his lack of criminal history, and his scoring in the low range of risk assessment based on standardized psychological testing. The reports determined that Robinson would be an appropriate candidate for community supervision and treatment, not penal incarceration.
Influenced greatly by these reports, the judge sentenced Robinson to one day of incarceration, credit for time already served, followed by five years of supervised release with no significant special conditions, and a $100 special assessment. The Government appealed the sentence as being both procedurally and substantively unreasonable. In 2012, the Sixth Circuit found the sentence was procedurally correct because the judge’s reliance on the psychological reports, though questionable, was not “clearly erroneous.” The appeals court, however, found the downward departure from the 78-month minimum recommended by the Guidelines was “substantively unreasonable” because the sentence one-day of incarceration did not reflect the seriousness of the crime for which Robinson was convicted, did not promote respect for the law, or provide just punishment for the offense as required under Section 3553a. The court specifically pointed to the lack of any significant incarceration, home confinement, or substantial fine, all of which form the basis for adequate deterrence mandated by Section 3553a.
Robinson sought, but was denied, certiorari review by the U.S. Supreme Court of the Sixth Circuit’s decision. The case wound up back before the original judge for a second sentencing hearing. This time around the Government requested a three-year period of incarceration while Robinson’s own attorney suggested a “lengthy period of home confinement.” The judge rejected both recommendations, instead, the judge re-imposed the one day period of incarceration, increased the period of supervised release from five to ten years with specific conditions that Robinson avoid interaction with minors and that he continue his therapy and medication.
The Government again appealed the sentence. The Sixth Circuit was not pleased with the lower court judge’s defiance. The appeals court said it was “dismayed” that the judge had not properly considered the Section 3553a factors as it had instructed him to do in its first remand decision. The appeals court was specifically disturbed that the one-day period of incarceration did not reflect the seriousness of the offense, that it lacked deterrent value, and that it promoted unwarranted sentencing disparity.
The appeals court then took the extraordinary step of reassigning Robinson’s case to another judge on remand. The court said: “ … The principal factors considered in determining whether reassignment is appropriate include ‘(1) whether the original judge would reasonably be expected to have substantial difficulty in putting out of his or her mind previously views or findings; (2) whether reassignment is advisable to preserve the appearance of justice; and (3) whether punishment would entail waste and duplication out of proportion to any gain in preserving the appearance of fairness.’”
Against the backdrop of these factors, the Sixth Circuit then issued this blistering assessment: “ … the district court refused on remand to heed the guidance from this Court and reimposed a sentence that failed to reflect the seriousness of a child pornography crime … the district court here had made plain that it would consider it ‘pandering’ to this Court to impose a sentence of confinement, and it has twice refused to confront the gravity of Defendant’s conduct. We are not confident that it will be able to put his previously expressed views aside in approaching the task of resentencing Defendant.”
And just how serious does the Sixth Circuit take the crime of child pornography? It pointed to a 2014 report by the Sentencing Commission to Congress that “fully 96.6 percent of first-time child pornography-possession convictions led to at least some prison time.”
Thus, attorneys in child pornography cases can be virtually assured that, if found guilty, some period of incarceration will be imposed upon conviction in these cases. But the outstanding job done by Robinson’s attorneys with respect to presenting their client’s mental history, his positive community conduct prior to sentencing, and his individual efforts at rehabilitation is illustrative. Their efforts influenced the Government to recommend a sentence of 36 months at the second sentencing hearing—a downward departure of 42 months from the original 78-month minimum recommended by the Guidelines. Now, that’s quality representation!