Federal Judges Must Consider Arguments For Leniency


Sentencing is one of the more complex, and divisive, components in our criminal justice system. Judges at the federal level are under a continuous duty to fashion the appropriate sentence and explain why a given sentence is imposed.


In all felony cases that get to sentencing, evidence of mitigation supporting leniency plays a significant role in the decisions of the federal judges who impose below guideline sentences. But, prior to 2005, mitigation wasn’t always a serious consideration under the then mandatory U.S. Sentencing Guidelines.


In 2005, the U.S. Supreme Court decided United States v. Booker which instructed federal judges to consider the Sentencing Guidelines advisory, not mandatory. Prior to Booker, federal judges were severely limited in how they could consider mitigation in fashioning an appropriate sentence and were specifically mandated by the appellate courts not to consider sentencing manipulation as a basis for supporting a downward departure from the Guidelines. But Booker, and four of its progeny (Kimbrough, Rita, Gall and Pepper), unequivocally instruct that a sentencing court must consider any non-frivolous argument for mitigation, even sentencing manipulation.


And just what is sentencing manipulation? A classic example of this corrupt practice by some federal law enforcement agents, and the prosecutors who allow it to continue, can be found in the May 15, 2015 decision by the District of Columbia Court of Appeals in United States v. Bigley.


Timothy Palchak, a detective with the D.C. Metropolitan Police Department, frequently trolled Internet chat rooms seeking out individuals with an interest in prepubescent children. He came across 75-year-old John Bigley who lived in New Castle, Pennsylvania. Detective Palchak enticed the elderly man into sordid and graphic details about sex with children. He weaved a web around Bigley by telling him that he was having sex with his girlfriend’s 12-year-old daughter, Christi. This attracted Bigley’s interest who expressed a desire to travel to Washington, D.C. to have sex with Christi.
The sentencing manipulation then came into play.


Palchak told Bigley he had taken photographs of Christi. This suggestion ensnared Bigley, who raised the possibility of his taking photographs of Christi during his trip to D.C. Palchak subsequently suggested that Bigley bring a digital camera when he made the trip to D.C. Bigley did just that. After he was arrested in D.C. by Palchak and others, a camera was found in Bigley’s vehicle. However, an ensuing search of the Bigley’s residence and computer did not find a single child pornographic image.


So what role did the camera play in the sentencing manipulation issue? Bigley pled guilty to one count of interstate travel with intent to engage in illicit sexual conduct with a minor—a violation of Section 2423(b) of Title 18. Pursuant to an order from the trial court, the U.S. Probation Department prepared a Presentence Investigation Report (PSR).


In calculating Bigley advisory sentencing guideline range, the PSR crossed referenced Guideline 2G1.3(c)(1) with Guideline 2G2.1 because Bigley’s offense involved “causing, transporting, permitting, or offering … a minor to engage in sexually explicit conduct for the purpose of producing a visual depiction of such conduct.” Guideline 2G2.1 increased Bigley’s base offense level from 24 to 32 which, as the court of appeals noted, “…boosted his sentence guideline range from 46 to 57 months to 125 to 168 months.


Bigley’s attorney argued for a variance from the guideline range. He told the court that Detective Palchak had “purposely introduced the camera into their conversations to manipulate and increase Bigley’s sentence.” The attorney pointed out to the court that “without the application of Section 2G1.1,” Bigley’s recommended sentence would have been in the range of 24 to 36 months. The sentencing court did not address the sentencing manipulation argument. Instead, the court imposed an 84 month sentence on the 75-year-old defendant, a virtual death sentence for a defendant who had no criminal history of either child sexual abuse or possession of child pornography.


In the wake of Booker and its offspring, appellate courts have carved out a very limited review of federal sentences; specifically, a narrow review that considers only the reasonableness of the sentence imposed. But within these restricted parameters the appellate courts have made it quite clear that a sentencing court must conduct an on-the-record inquiry in which he or she considers all the statutory sentencing factors spelled out in 18 U.S.C., Sec. 3553(a). A majority of the circuits, including the Fifth Circuit, have held that this inquiry must consider any non-frivolous arguments for mitigation directed at the Sec. 3553(a) factors.


The appeals court adopted Bigley’s argument that even if a more punitive sentence under Guideline 2G2.1 was permissible, the court should have considered a “non-guideline sentence” through a downward variance because the Government had purposely manipulated the sentence by inserting a camera into the discussions between Palchak and Bigley. Bigley further argued that “his offense conduct did not involve child pornography”—an argument supported by the exhaustive searches of his residence and camera which did not reveal any child pornography.


The Court specifically said that ‘[w]hen a district court confronts a nonfrivolous argument for a sentence below the relevant guideline range, it must consider it.”


The D.C. Circuit the vacated Bigley’s sentence and remanded the case back to the sentencing court with instructions that it consider the non-frivolous sentencing manipulation claim.


This is an obvious instance of law enforcement unnecessarily introducing or enticing additional bad conduct into a criminal investigation solely for purposes of driving a higher possible sentence. Detective Palchak knew he was dealing with a 75-year-old man who obviously had some serious psychological issues but who was not a pedophile. The detective had a sufficient case against Bigley once he expressed an interest in traveling to D.C. to have sex with Christi. That conduct alone subjected Bigley to a serious criminal penalty. There was no need to introduce the camera into the criminal mix. The detective did so purposely to expose the elderly Bigley to a prison term that amounted to a virtual death sentence.


And the sentencing court knew, or should have known, that this kind of sentencing manipulation should have been addressed as to whether it was a mitigating factor for Bigley’s sentencing. The court had a duty to put this issue into a proper perspective, address it openly, and seriously consider a sentence in the range of 24 to 36 months. There is a significant difference between a two or three year sentence and the seven year sentence imposed the court ultimately imposed on Bigley.


And defense counsel bears some criticism here as well. He did not properly object to the court’s refusal to address the sentencing manipulation issue, potentially barring an appeal on the issue. The defense should have objected to reasonableness of his sentence and the trial courts failure to consider the sentencing manipulation issue. Fortunately, the D.C. Circuit entertained the issue after finding it fell under the “plain error” review.


At the end of the day justice was served. But this is a good lesson to defense lawyers practicing in criminal courts, especially federal courts, to be on the lookout for, and to object to, sentencing manipulation during law enforcement investigations.