Looking For the Substantively Reasonable Number

In United States v. Harris, 07-4175 (6th Cir. July 27, 2009), Judges Gibbons, McKeague, and Shadur, vacated Harris’s sentence and remanded for resentencing. Harris had pled guilty to two counts of possessing child pornography, one count of receiving and distributing child pornography, and one count of knowingly possessing a computer with child pornography on it. The advisory Guidelines range was 210-262 months of imprisonment. The PSR, however, suggested a downward variance would achieve the statutory purposes of sentencing.

In sentencing Harris, the district court varied downward and imposed a sentence of 84 months of imprisonment, a term which more than encompassed the 60-month statutory, mandatory minimum sentence. The district court also imposed a supervised release term of 3 years. In explaining the downward variance, the district court addressed the 18 U.S.C. § 3553 factors and stated:

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. . . .

Though the district court considered the § 3553 factors and the statutory purposes of sentencing, the panel vacated Harris's sentence, stating:

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.

Clearly, the panel did not state a variance was impermissible. In fact, the panel suggested a sentence below the advisory Guidelines range could be reasonable. It is unclear from the opinion, however, what magical combination of explanation and variance is necessary to avoid having a sentence be deemed substantively unreasonable.

The Sixth Circuit has affirmed below-the-Guidelines sentences in seemingly similar child pornography cases. For example, in United States v. Weller, 2009 WL 1349779 (6th Cir. (Tenn.) May 13, 2009), the Circuit recently affirmed a sentence of 120 months’ imprisonment when the advisory Guidelines range was 324 to 405 months' imprisonment. Weller had pled guilty to eight child pornography-related offenses. The Harris case thus only adds to the difficulty of determining "how much" is enough. "How much" explanation? "How much" variance? "How much" time?

How can we defense attorneys help to answer the "how much" questions? The most obvious suggestion is to file sentencing memorandums that address all the § 3553 factors that pertain to our cases – which did not appear to have occurred in the Harris case and which may not have changed the end result even if one had been filed. However, in my humble opinion, if we hope to have a sustainable record, we need to contribute to that record. Before walking into a sentencing hearing, we should have created a written roadmap for each applicable sentencing factor that supports a departure or variance, complete with signposts, rest areas, and scenic views, so, maybe, we can more effectively help shape the determination of "how much" is enough.