In United States v. Gates, the Second Circuit today affirmed a 45-year sentence for a person with no criminal history, who was convicted of three counts related to sexual exploitation of her child based on five images found on the child’s father’s phone. (Even though the child’s father, unlike Gates, had thousands of additional images of child pornography as well as a criminal history, he received the same sentence as Gates). The Circuit appeared completely unmoved by her argument that her sentence was substantively unreasonable, failing to engage with or even mention any facts about Gates’s personal background.
The Circuit, however, did find that the district court erred in at least two ways. First, the Circuit found that the district court improperly counted a conspiracy count as a separate group. But, the Circuit said, this error was harmless because the offense level was so high that it would still …