New Child Porn decision with varying opinions

On Friday, January 2, 2015, the court released its first decision of the new year, United States v. Walters.   Although the case on one hand is uninteresting (the Court upheld the 151 month sentence and all imposed Guidelines enhancements), it is worth reviewing to show how the individual judges are struggling with CP sentences in general.

Judge Merritt wrote a strong dissent in the case, arguing that the 151 month sentence was "out of proportion" to the offense and violated the Eighth Amendment.  Judge Merritt cited to the Sentencing Commission and the DOJ's stances that sentences for these type of cases were outmoded, and noted that "[i]t seems obvious that nothing is going to soon change the injustices such as this one that are going on every day in the federal courts—unless the courts themselves find a solution that at least ameliorates the problem for the time being."

Judge White concurred in the decision to uphold the sentence imposed, but wrote a separate concurring opinion to voice her concerns.  In her opinion, she stated  "The appropriate judicial response in situations such as this one is not for appellate courts to reduce Guidelines sentences as a matter of course, but rather, for sentencing judges to recognize that Guidelines based on the Protect Act should be carefully scrutinized. Unfortunately, as the dissent observes, Walters’ counsel did not bring to the district court’s attention, or argue on appeal, that the Commission considers the sentence recommended here to be excessive. In the context of a sentencing proceeding in a child pornography case, competent counsel should be expected to bring to the district court’s attention that the Guidelines do not, as in other contexts, reflect the presumed superior expertise and breadth of information of the Commission, and in fact are contrary to the Commission’s considered judgment."  Thus, according to Judge White at least, it may be ineffective assistance for defense counsel to not challenge a CP Guidelines ranges as excessive.

CP sentencings are becoming more and more difficult for district court judges.  It seems that the Sixth Circuit is divided into numerous camps on what is appropriate.  The spectrum is varied, and leaves district court's squarely in the middle to figure out what is appropriate.