We have previously blogged on Defending Child Pornography Offenses in Federal Court. As we explained, federal prosecutors are prosecuting child pornography offenses at an astounding rate both here in the Northern District of Texas and throughout the country.
We also discussed the dramatic changes over the years in the federal sentencing guidelines for child pornography. The guidelines have gotten so ridiculous that many times a person who downloads child pornography and makes it available with a file sharing program actually faces a much harsher sentence than a person that actually abuses a child.
On October 26, 2010, an important case was decided by the United States Court of Appeals for the Third Circuit, UNITED STATES V. GROBER. In that case, a defendant who had pleaded guilty to child pornography offenses was facing 235-293 months imprisonment under the sentencing guidelines. The sentencing judge did not follow the guidelines and only sentenced the defendant to the mandatory minimum sentence of 60 months imprisonment. The case was in federal court in New Jersey and, even though Broden & Mickelsen was not involved in the case, the judge referred to a sentencing memorandum that we did for another client.
The government was not happy and appealed the sentence. In a 2-1 decision, the Third Circuit rejected the government’s appeal. The opinion is lengthy but a few things are worth noting. First, it noted that “numerous district courts across the country” have found the child pornography guidelines to be “flawed.” It cited a survey of federal judges and found that there was “wide-spread” dissatisfaction with the child pornography guidelines and that 69% of judges responding to a survey believed that the guidelines for possessing child pornography were too high. Second, the Third Circuit noted that the dramatic increases in the child pornography guidelines over the years were politically driven and had not been developed using the expertise of the United States Sentencing Commission. “The result is a Guidelines provision where, as the Commission found, if the base offense level was any higher, the typical offender sentenced for receipt of child pornography would face a higher Guidelines range than the typical offender convicted of conspiracy to commit murder and kidnapping.”
We have discussed, in our other post, how the child pornography guidelines have changed over the years. In one case, our client was facing 151-188 months imprisonment, but we charted the sentence our client would have faced under earlier versions of the guidelines:
1987-11/1990 12-18 months
11/1990-11/1996 21-27 months
11/1996-11/2000 41-51 months
11/2000-4/2003 70-87 months
4/2003-11/2004 87-108 months
11/2004-pres. 151-188 months
The new Third Circuit case, along with an earlier Second Circuit case (United States v. Dorvee, 616 F.3d 174 (2d Cir. 2010)) will hopefully help attorneys convince courts that the child pornography guidelines are completely out of sync with the guidelines for other offenses. Nevertheless, if a person is charged with a child pornography offense in federal court, it is imperative that they hire an attorney who regularly handles these types of cases and is familiar with the arguments attacking the sentencing guidelines in these cases. It could mean the difference between a 15-20 year sentence and a sentence significantly less harsh.