More Bad News on the C.P. Front

The Sixth Circuit continued its dispiriting trend of sentencing cases related to child pornography with the Robinson case on Monday, yet another case that (1) negates what appears to be hard work at sentencing by defense counsel, and (2) admonishes district courts that exercise their discretion to vary from the Guidelines.

Defense counsel put on multiple test results demonstrating that the defendant was not inclined toward contact offenses with children. The district court was moved by these results, along with the fact that the defendant would have to register as a sex offender for the rest of his life, the fact that he would always have a felony on his record, the fact that he voluntarily sought counseling, and several other factors. The district court varied downward from a Guidelines range of 78 to 97 months to a sentence of one day in prison and five years of supervised release. The Sixth Circuit found this to be substantively unreasonable. A few stray observations:

1. The most lasting effect of this opinion is likely to be the Court’s conclusion that a defendant’s requirement to register as a sex offender for the rest of his life cannot be considered as part of § 3553(a)’s “deterrence” factor because it is part of the conviction, not the sentence. This sort of hyper-technical reasoning seems oddly divorced from a world in which cities and states force sex offenders into homeless camps or under overpasses on islands because there is nowhere else they are legally allowed to live.

2. Can a district court consider a defendant's likelihood to commit contact offenses or not? If not, someone ought to tell AUSA's across the country. They have a habit of raising the fear of contact offenses in sentencing hearings.

3. The opinion does acknowledge that the 2-level enhancement for using a computer “now occurs in almost every case,” but the opinion does not have the same critique of the enhancement for sadomasochistic content, which also occurs in almost every case. There is some interesting discussion of the enhancement for the number of images possessed, and the opinion suggests that a defendant who received thousands of images at one time might be less culpable than one who — like this defendant — had collected the same number over a long period of time.

4. If you still have trouble distinguishing between substantive and procedural unreasonableness, this opinion is unlikely to be of assistance.