Are Federal Sentencing Guideline Substantively Unreasonable in Child Pornography Cases?


In July 2011, Thomas King was indicted by a Federal grand jury in Maine for possessing a computer storing child pornography—a criminal violation under 18 U.S.C. § 2252A (a) (5) (B). A forensic examination of King’s computer revealed disguised recorded videos of his minor stepdaughter masturbating in her bathroom. Each video contained 75 child pornographic images, placing King’s offense in the range of 150 to 300 offending images.


Several months after his arrest, King entered a guilty plea. The trial court ordered a PSI Report. Under the U.S. Sentencing Guidelines (“Guidelines”), the Report recommended a base offense level of 18. The Report also recommended the application of three enhancement levels permissible under the Guidelines: a five-level enhancement for a pattern of abuse authorized by USSG § 2G2.2 (b) (5); a two level enhancement for use of a computer in the commission of a crime authorized by § 2G2.2 (b) (6); and a three level enhancement for possessing 150 to 300 images of child pornography authorized by § 2G2.2 (b) (7) (B). Giving King a two-level decrease for acceptance of responsibility authorized by § 3E1.1, the Report placed his total offense level at 25 and recommended a sentence of 57 to 71 months.


After a sentencing hearing conducted in August 2012, the trial court imposed a 72-month sentence on King. On appeal to the First Circuit Court of Appeals, he leveled a frontal assault on the harshness of the Guidelines enhancements in child pornography cases. Thomas essentially argued that the use of computer and number of images enhancements indiscriminately punished conduct with a wide range of culpability resulting in similar sentences for dissimilar conduct.

On January 31, 2014, the First Circuit, in United States v. King, rejected King’s challenges. The appeals court opened its opinion with this terse observation: “The federal sentencing guidelines are designed to serve as tools to assist judges in performing one of their most consequential tasks. They are not meant to dictate robotic sentencing outcomes. In this single-issue appeal, defendant-appellant Thomas King challenges his 72-month term of immurement as substantively


unreasonable. As framed, the challenge both distorts the function of the federal sentencing guidelines and undervalues the district court’s broader appraisal of the seriousness of the offense of conviction. After setting the record straight, we affirm.”

The core of Thomas’s argument was that the child pornography Guidelines results in an illegal sentencing scheme that results in disparate sentences. With its enactment of 18 U.S.C. § 3553(a), Congress explicitly said that Federal criminal sentences should be sufficient but not greater than necessary and must “avoid unwarranted sentence disparities.”


Because the Guidelines recommended range in some child pornography cases exceed that for a child rapist or a second-degree murderer, Congress’s admonition in § 3553(a) is not being heeded.


The First Circuit was not in the least receptive to this argument which, the court said, “fundamentally misrepresents the role of the guidelines in the sentencing process. The guidelines are not intended to fashion sentences with the precision of a Savile Row tailor. To the contrary, they represent a ‘wholesale’ approach to sentencing, offering only ‘a rough approximation of sentences that might achieve § 3553(a)’s objectives.’ As such, the guidelines are simply ‘the starting point and … initial benchmark’ for crafting a sentence.”


Fair, individualized sentencing, as spelled out in § 3553(a), is not the real objective. Rather, sentencing that approximates fairness in the overall scheme of things is the real objective in the Federal sentencing process, according to the First Circuit.

Significantly, the Second Circuit, in United States v. Dorvee, refused to embrace this form of “wholesale” justice approach, saying the misuse of sentencing enhancements fail to “guard against unwarranted similarities among sentences for defendants who have been found guilty of dissimilar conduct.”


The First Circuit cornered its argument this way: The recommended sentence of the PSI Report is the “starting point” from which the sentencing judge must proceed to “’make an individualized assessment based on the facts presented’ and the statutory sentencing factors in order to shape the actual sentence.”


Translated this means a defendant who possesses graphic child pornography involving children under the age of five is worse than a defendant who possesses child pornography of children above the age of ten. This sentencing distinction can be so great, depending upon the circumstances of each case, that a defendant who possesses pornographic images of children under five years of age could actually be sentenced more severely than a rapist or a second degree murderer. And that is okay with the First Circuit because:


“Given the function of the sentencing guidelines and the methodology that they contemplate, a frontal assault on the guidelines cannot, without more, afford a persuasive basis for a claim of sentencing disparity, much less a claim of substantive unreasonableness. After all, such an assault takes aim at a fragment of an inchoate sentence, but the court’s inquiry into substantive reasonableness must examine more: ‘the totality of the circumstances’ surrounding the final product.

“By definition, such an inquiry does not allow a reviewing court to examine guideline enhancements in isolation. Rather, a reviewing court must account for the whole of the various integers that comprise the sentencing calculus, including the sentencing court’s overall appraisal of the PSR, its evaluation of the offender and the offense conduct, and its case-specific synthesis of the statutory sentencing factors.


“Seen in this light, [King’s] argument is insupportable. The defendant beseeches us to look at two enhancements to the exclusion of everything else. Honoring such an entreaty would undermine our consistent directive that sentencing courts must refrain from adopting ‘a narrow focus on a particular [sentencing] factor in isolation.’ Appellate courts – like district courts – are not at liberty to engage in such a faulty practice.


“Sentencing requires a broader focus because ‘section 3553(a) is more than a laundry list of discrete sentencing factors; it is, rather, a tapestry of factors, through which runs the thread of an overreaching principle’; that a sentencing court ought ‘to impose a sentence sufficient, but not greater than necessary’ to accomplish the goals of sentencing. The defendant’s entreaty, which invites us to ignore the forest and glimpse only a couple of trees, perfectly exemplifies the folly of such a single-minded approach.”


Whatever happened to the notion that “punishment should fit the crime?”