Tuesday, August 23, 2011


What if you proved that a Guideline was empirically baseless and nothing happened? This head-scratcher — once used by Buddhist monks to induce a meditative state — is exemplified in yesterday’s unpublished Campana opinion and today’s unpublished Sanchez opinion.

After Campana was discovered uploading child pornography onto the internet from his Yahoo! account, authorities searched his home and found pornography on a total of 74 floppy disks. (Between the “floppy disks” and the Yahoo! account, Campana has taken the I-Love-The-90s! fad to a new level.) All told, Campana possessed 557 images and 18 videos containing child pornography, which practitioners in this area will recognize as an average-to-below average amount for such defendants. But it will come as little surprise to those same practitioners that Campana’s Guidelines range was 360 months to life, based on an offense level of 42 and a criminal history category of I. Presumably this offense level calculation included all the usual enhancements, and possibly a 5-level bump for his attempt to distribute to people claiming they were minors. Don’t worry about Campana though — it’s not nearly that bad for him thanks to the statutory maximums. They knock him down to an easy-breezy 20 years, with 15 years’ supervised release after that.

But here’s what’s weird: Campana’s attorney evidently sought to do what good attorneys do in these cases by pointing out that this Guideline has no empirical basis whatsoever and was entirely the product of Congressional whimsy. Here’s what’s weirder: The sentencing judge agreed, stating that he or she was “persuaded that the guideline provisions relating to child pornography of this nature do not reflect the kind of . . . empirical data, national experience and independent expertise that are characteristic of the commission’s institutional role” and opting to treat them as non-binding. Phew.

So what sentence did Mr. Campana receive? The statutory-maximum 20 years. On what § 3553(a) factors did the district court base this multi-decade sentence? Reader, I do not know. You see, the first part of the sentencing discussion is dedicated to upholding the sentence on substantive reasonableness grounds where the district court apparently failed to discuss several of those factors. Despite apparently finding the Guidelines completely baseless and non-binding, the district court gave Campana the highest possible sentence, the stat max, in light of “[t]he defendant’s lack of criminal history, his history of gainful employment and the likelihood that treatment while incarcerated and a lengthy term of supervised release will protect the public and deter Mr. Campana and others from committing similar crimes.” That’s all we know.

If you are not yet entering a trance-like meditative state, contemplating the nothingness that both is and is not your existence, take a look at today’s unpublished Sanchez case. There, the defendant raped and molested his daughter between the ages of 6 and 12, at which point he started filming the rape. He also raped his daughter’s half-brother and forced her to watch. Guess what his Guidelines range was for producing child pornography while raping his daughter. Go ahead, guess. . . .

It was 235-293 months: less than Campana’s. In fairness, the statutory minimum for Sanchez was 300 months, and he ultimately received 360, but if you need any further proof that the child pornography Guidelines are baseless — or if you need a Zen koan wrapped in a riddle wrapped in an enigma wrapped in a beautiful flower — look no further than to Campana and Sanchez.


Clare Freeman, RWS, WD Mich said...

Wow. I am flummoxed. Great post!

Isabella said...

True grit is making a decision and standing by it,doing what must be done.


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