Saturday, January 29th, 2011

PC World

This week’s per curiam opinions both deal with sentencing matters.

First is United States v. Johnson, No. 08-4093-cr (2d Cir. January 28, 2011) (Kearse, Winter, Hall, CJJ) (per curiam).

Here, three defendants challenged the district court’s denial of their crack resentencing motions under 18 U.S.C. § 3583(c)(2). After a trial, the district court found that each defendant was personally responsible for their organization’s total sales, approximately 88 kilograms. The district court sentenced two defendants to life in prison; for the third, the court downwardly departed to fifteen years. The circuit held that the district court properly denied the § 3583(c)(2) motions, because the ameliorating amendment did not change the base offense level for offenses involving 4.5 kilograms or more of crack.

On appeal, the defendants tried to persuade the circuit that they were not actually responsible for that quantity. But the circuit found no error in the district court’s drug quantity determinations.

Next is United States v. Cossey, No. 09-5170-cr (2d Cir. January 28, 2011) (Kearse, Walker, Pooler, CJJ) (per curiam).

In this case, the defendant pled guilty to possessing child pornography, and the district court sentenced him to seventy-eight months in prison and a life term of supervised release. In selecting this sentence, the district court concluded that the defendant was “genetically predisposed to view child pornography,” and rejected two separate psychological evaluations finding that the defendant was at a “low to moderate risk to re-offend.” The district court predicted that “fifty years from now” the offense would be discovered to be “caused by a gene you were both with” that “you can[not] get rid of.”

The circuit found the district court’s fixation on this as-of-yet undiscovered gene to be plain error. “Where a district court relies on its own scientific theories of human nature to sentence a defendant, as it [did] here, a finding of plain error is warranted.” The court also remanded to a different judge because the “extent of the discussion concerning Cossey’s genetic predisposition to re-offend has raised serious concerns over the objectivity of the judge.”

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