Thursday, December 8th, 2016

60-year Sentence in Child Pornography Case Is Found Substantively Reasonable

On Tuesday, the Second Circuit issued a decision in United States v. Brown. The opinion presents an interesting debate about how the federal system punishes defendants accused of child pornography charges. I encourage defense attorneys to check out both the concurrence and dissent, for some powerful arguments about the risks of unreasonable sentences in child pornography cases.

The opinion examines defendant Nathan Brown’s 60-year sentence for procedural and substantive reasonableness. The defendant pleaded guilty to 3 counts of production of child pornography in violation of 18 U.S.C. § 2251(a) and 2 counts of possession of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B).

The majority (J. Droney) begins with a recitation of some of the more egregious facts, which you can find on pp. 3-11. The basics: The defendant took sexually-explicit photos of girls, ranging in ages from 8 -12, who were in his care and then uploaded those photos to the internet. The procedural reasonableness of the sentence is dispensed with quite quickly, but that section (and the facts) are worth a review since the analysis demonstrates how the many enhancements in this area can dramatically increase a sentence on child pornography charges.

The bulk of the opinion, and of the response in the concurrence and dissent, is about the substantive reasonableness of a sentence that is the equivalent to life in prison for a person not convicted of murder, or rape, or some other physically violent crime. The majority finds that “given the seriousness of the crimes involved here, a 60 year sentence – which was below the Guidelines range – is within the realm of punishments that this Court has upheld as reasonable for production of child pornography, even considering that there may be, as [the defendant] argues, ‘more serious’ crimes such as intentional murder.” The Court spends most of its time distinguishing the 2010 case of United States v. Dorvee, 616 F.3d 174 (2d Cir. 2010), where the Court found that a 240-month sentence on one count of distribution of child pornography was substantively unreasonable. In Dorvee the Court objected to the fact that the district court assumed that the defendant was likely to sexually assault a child, even though there was no evidence that the defendant had ever had sexual contact with a child. In Brown, the defendant “did have actual sexual contact  — repeatedly – with multiple young victims, and [the defendant] engaged in the production of child pornography during the course of this abuse.” Given the seriousness of this conduct and “the need to protect the public from further crimes of this defendant and others . . .” the Court found the sentence substantively reasonable.

Judge Sack’s concurrence is quite interesting because in June in a previous decision in this case, Sack had joined Judge Pooler (dissenting here) in finding that that the case should be remanded for resentencing. The court withdrew that decision and Sack joined Droney in a concurrence here. Sack does, however, make clear his view that child pornography sentences must be reviewed thoroughly:   “the size of [the 60-year] sentence alone counsels our careful, searching review of it. But the extreme nature of the offenses compels, I think, particularly meticulous scrutiny.” Judge Sack notes even in reciting the facts of a case such as this one, judges risk allowing outrage at the defendant and sympathy for the victims to outweigh objective evaluation of the facts. And he expresses discomfort, as does Judge Pooler in her dissent, with the language used by the district court judge at sentencing.

Finally, for defense attorneys, Judge Pooler’s dissent has a lot of quotable language about the risks of unreasonable sentences in child pornography cases. The dissenting opinion focused on the extreme length of the sentence in comparison to those handed down for violent crimes.  Judge Pooler also pointed out that the sentencing judge did not properly credit that only two of the three victims here provided statements as to the long-lasting psychological and emotional damage Brown’s actions had caused them.

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