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 have been above the guidelines’ cap without that error.
Second, the Circuit found that the district court committed a “significant error” in failing to follow the rule of criminal procedure requiring the court to verify whether Gates and her lawyer had read and discussed the PSR. The Circuit called this error “inexcusable.” The Circuit “stress[ed] that district courts must be scrupulous in adhering to Rule 32.” But was there any remedy for Gates for this “significant,” “inexcusable error”? Nope!
Finally, Gates also argued there were numerous other errors in the guidelines calculation. The Court found most of those potential errors harmless, saying that “even assuming” various enhancements shouldn’t have applied, the offense level would still have been one point above the cap. The Circuit squarely rejected just one of her arguments about the guidelines calculation, saying that the enhancement for a “pattern” of sexual abuse was correct, based on the fact that the child wore one shirt in two pictures and a different shirt in the other three.