Appellate court decision: 572 F.3d 146 (3rd Cir. 2009)
II. Whether a § 3582(c)(2) sentencing is limited such that a district court must impose sentence based on an admittedly incorrectly calculated guideline range.
Now it's, I think in light of all of these factors, I think a sentence of 84 months would be an appropriate sentence in this case. Now, I think it must be more than the mandatory minimum. I think the defendant has to feel the seriousness of this matter, which is very serious. And I think that given his history, lack of other criminal involvement before, I think this sentence sends a very strong message to him that something that he thought maybe wasn't that serious, sitting there at his computer looking at some images, not hurting anybody, that it hurts and that he'll be away from his family, away from his job, not being able to contribute at all. So he's gone from living a life of comfort and caring, to one where he's locked up, locked up for seven years or 84 months.
I think that wouldn't be enough in many cases, but I think that it is enough in this defendant's case. When I consider the supervised release period that I am going to impose on him, when I consider the structures that are going to be on him as a result of being designated as a person who has been convicted of child pornography, and also given the restrictions that are going to be put on him going forward, I think that those would serve to protect the public, not just to put him away for 84 months, but to brand him in a way which he could be identified, and also the public will be protected because he will not be free to move about as other persons move about in society without significant restrictions. I think that would protect the public here, and I think that the information here suggests that there is less to protect the public from than there might be in some other cases, although, clearly, it needs to be protected.
So I think that when you consider all of those factors it does reflect the seriousness of the offense, it does serve as an adequate deterrent. I think it would protect the public. And then I'm going to require him to have some treatment, and again that's something that will be part of his supervised release, which will require him to deal with the issues, mental health issues, or possible mental health issues, growing out of this problem. . . .
The bottom line is that the factors the district court relied on, as articulated in the record, do not appear to justify a variance of this size. This is not to say that the variance itself is per se unreasonable – only that the district court must provide a sufficient justification for such a major variance. The district court in this case did not do so. Instead, the district court placed an unreasonable amount of weight on Harris’s character. It did so despite Harris’s lack of distinguishing characteristics and despite the seriousness of the offense. Accordingly, we find the variance here substantively unreasonable based on the current record.