Wednesday, July 28th, 2010

Land of Enhancement

United States v. Tutty, No. 09-2705-cr (2d Cir. July 16, 2010) (Calabresi, Pooler, Chin, CJJ)

In United States v. Dorvee, 604 F.3d 84 (2d Cir. 2010), the court held that the child pornography Guidelines are entitled to less deference because they are not the product of an “empirical approach,” and because they “provide for a series of enhancements that apply in virtually every case,” resulting in enormous sentences “even in run-of-the-mill cases.” See Deconstruction Project, posted May 23, 2010. Here, following on the heels of Dorvee, the court found procedural error in the district court’s refusal to consider a broad-based policy challenge to those Guidelines.


Defendant Jason E. Tutty pled guilty to possessing digital images of child pornography that he had received and distributed over the Internet using a file sharing program. He had no criminal history and no know history of sexual contact with a child. At sentencing, in the face of a 168 to 210-month range, he argued both that his personal history and characteristics warranted a lesser sentence, and that, on policy grounds, the court should not follow the Guidelines. The court indicated that it lacked the authority to deviate from the Guidelines solely on policy grounds, and sentenced him to 168 months.

The Court’s Decision

Tutty challenged only the substantive reasonableness of the sentence. Interestingly, however, the court, considering the case “nostra sponte in the interest of justice,” vacated the sentence on procedural grounds and remanded for sentencing. It held that the district court “committed procedural error when it concluded that it could not consider a broad, policy-based challenge to the child pornography Guidelines.”

The court did not rule on substantive reasonableness, but noted that, on remand, the district court would “now have the benefit of our decision in Dorvee.” The circuit directed that the district court “take note of the[] policy considerations” identified in Dorvee and “bear in mind that the ‘eccentric’ child pornography Guidelines … ‘can easily generate unreasonable results’ if they are not ‘carefully applied.’”

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