In a remarkably fatalistic opinion, the Second Circuit rejected a substantive reasonableness challenge to a 25 year sentence for child pornography sentence charges. The sentence, the panel explained, was “barbaric without being all that unusual.” United States v. Sawyer, No. 15-2276 (2d Cir. Oct. 6, 2018) (Jacobs, Pooler, Crawford (D. Vt.)), available here.
The defendant in Sawyer was initially sentenced to 30 years’ imprisonment on charges of sexual exploitation and receiving child pornography. The defendant’s PSR documented that the defendant suffered a childhood of severe physical and sexual abuse. The district judge described this childhood as “horrific” and “nightmarish,” but admonished the defendant that “I can’t excuse that darkness in your heart and soul that made you prey upon two innocent children.” Slip op. at 3-4. (The defendant was prosecuted for having, but not distributing, graphic cellphone photos of two young girls with whom he had close relationships.) The Second Circuit reversed the sentence as substantively unreasonable, and in doing so found that “the district court clearly failed to give appropriate weight to a factor listed in Section 3553(a) that should have mitigated the sentence substantially: the history and characteristics of the defendant.” Slip op. at 4 (quoting United States v. Sawyer, 672 F. App’x 64-65 (2d Cir. 2016) (summary order)).
On resentencing, the district judge expressly disagreed with the Second Circuit’s analysis and concluded that “surely . . . anyone reviewing the sentence would conclude, as I did, that it was substantively unreasonable.” Slip op. at 5. Nevertheless, she reduced the sentence by five years to account for the defendant’s “extraordinary post-sentencing rehabilitation efforts.” Id.
The panel upheld the 25 year sentence. The defendant argued that the law of the case required reversal. The panel concluded, however, that the law of the case was only “that a 30-year term of imprisonment is unreasonable, and the mandate required a substantial reduction.” Id. The Circuit’s mandate, it explained, did not bar the district judge from rejecting the Circuit’s reasoning.
The panel went on to conclude that the sentence was substantively reasonable because “we cannot bring ourselves to call it shocking under our governing law.” “Regrettably,” the panel explained, “twenty-five years is no great departure from sentences routinely imposed in federal courts for comparable offenses.”
“The sentence,” the panel resigned itself to conclude, “is barbaric without being all that unusual.” Id. at 7.
Chief Judge Crawford, of the District of Vermont, issued a careful dissent with respect to the panel’s law-of-the-case holding. As he explained:
This case poses a fundamental question of court governance. Following an appellate court’s determination that a sentence is substantively unreasonable because it fails to give weight to specific § 3553(a) factors, is the district court free on remand to take a second look and decline to change its original position? The only answer consistent with the mandate rule is that the decision of the panel must be followed. How much to change the sentence based on the factors identified in the mandate lies within the sentencing discretion accorded to the district courts. But that discretion does not extend to the outright rejection of the mandate which occurred in this case.
Id. at 12-13 (Sawyer, J., dissenting) (citations omitted).