Sunday, May 23rd, 2010

Deconstruction Project

United States v. Dorvee, No. 09-0648 (2d Cir. May 11, 2010) (Cabranes, Parker, CJJ, Underhill, DJ)

In this first-of-a-kind opinion, the court (1) held that a within Guideline – albeit statutory maximum – sentence was substantively unreasonable and (2) found that an offense Guideline other than the crack Guideline was not the product of the Commission’s traditional empirical role and hence, under Kimbrough, was not entitled to deference.


While chatting online with undercover officers posing as teenage boys, Justin Dorvee sent them computer files containing child pornography. He was arrested when set out to meet one of the boys. A search of his home revealed several thousand still images and more than 100 videos containing child pornography. He ultimately pled guilty to one count of distribution of child pornography.

Under a correct application of U.S.S.G. § 2G2.2, which prescribed a base offense level of 22 plus enhancements for such things as the number and content of the images, he faced a sentencing range of 262 to 327 months’ imprisonment. However, since the statutory maximum sentence was 240 months, 240 months became his Guideline range.

At sentencing, Dorvee introduced medical evidence intended to mitigate that sentence, including evidence that he was a compulsive collector and had serious personality disorders, but was “not a predator” and would respond well to treatment. The court expressed sympathy for him, but still concluded that he was a “pedophile” who would have sex with a younger boy if he could, even if he would not initiate the behavior. After reviewing the statutory factors, the court sentenced Dorvee to 240 months, less six months and fourteen days of uncredited time he had served in state court, for a total sentence of 233 months and sixteen days.

The Appeal

The circuit vacated the sentence, finding it to be both procedurally and substantively unreasonable.

1. Procedural Error

The procedural error was the district court’s apparent view that the Guideline range was still 262 to 327, and not, per U.S.S.G. 5G1.1(a), 240 months, along with its erroneous corollary conclusion that the higher range was the benchmark for any variance.

This error was not harmless – it “carried serious consequences” for Dorvee. If the district court intended to impose a sentence “relatively far below the guideline,” as it said it did, Dorvee “did not receive the benefit of such an intention.” Where “the district court miscalculates the typical sentence at the outset, it cannot properly account for atypical factors and we, in turn, cannot be sure that the court has adequately considered the § 3553(a) factors. That is what appears to have happened here, and constitutes procedural error.”

2. Substantive Error

The court also deviated from its usual practice of refraining from reviewing for substance until the procedural errors have been corrected, and instead “reach[ed] both the procedural and substantive reasonableness of the sentence [since it found] both types of error.”

Here, even accepting the need for punishment and the requirement that it defer substantially to the district court’s judgment, the court found the sentence to be substantively unreasonable.

First, the district court placed unreasonable weight on its assumption – unsupported by the record evidence – that Dorvee was likely to actually sexually assault a child. The district court’s explanation of the need for deterrence also “ignored the parsimony clause,” offering no “clear reason” why the maximum sentence, instead of some lower sentence, was required to deter an offender like Dorvee.

Next, the circuit took issue with the child pornography Guideline itself, calling it “fundamentally different from most” and noting that “unless applied with great care, [it] can lead to unreasonable sentences that are inconsistent with what § 3553 requires.” With this introduction, the court then systematically deconstructed U.S.S.G. § 2G2.2.

It began by noting that the Sentencing Commission “did not use [an] empirical approach in formulating the Guidelines for child pornography.” Rather, it systematically increased the penalties based directions from Congress, even as it “openly opposed these Congressionally directed changes.”

The court went on to agree that the enhancements included in § 2G2.2 “cobbled together through this process routinely result in Guidelines projections near or exceeding the statutory maximum, even in run-of-the-mill cases” because the base offense level has been increased from 13 to 22 and the enhancements “apply in nearly all cases.” As a result, “adherence to the Guidelines results in virtually no distinction between the sentences for defendants like Dorvee, and the sentences for the most dangerous offenders who, for example, distribute child pornography for pecuniary gain and who fall in higher criminal history categories.”

Under Kimbrough, a court “may vary from the Guidelines range based solely on a policy disagreement with the Guidelines, even where that disagreement applies to” many offenders or offenses. “That analysis applies with full force to § 2G2.2.”

The opinion ends with a message to district judges, encouraging them to “take seriously the broad discretion they possess in fashioning sentences under § 2G2.2 … bearing in mind that they are dealing with an eccentric Guideline of highly unusual provenance which, unless carefully applied, can easily generate unreasonable results.”

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