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Sentencing for child pornography in federal court
by Gary Muldoon
Muldoon, Getz & Reston
Rochester, New York

In imposing sentence in federal court, a judge must consider four factors: to reflect the seriousness of the offense, promote respect for the law and provide just punishment for the offense; deterrence; to protect the public from further crimes by the defendant; and to provide the defendant with needed education or training or other correctional treatment. 18 USC § 3553(a)(2).


The intersection of these sentencing factors and the United States Sentencing Guidelines relating to child pornography were addressed in US v Dorvee, 616 F3d 174 (2d Cir 2010).


The defendant in Dorvee was convicted of one count of distributing child pornography, 18 USC § 2252A(a)(2)(A). He had engaged in sexually explicit conversations with what he thought was an underage male, but was an undercover police officer, and had sent child pornographic images over the Internet. Intending to meet the underage male to engage in sexual conduct, Dorvee was instead arrested.


A search warrant turned up thousands of still images and more than 100 child pornography videos, including prepubescent minors and sadomasochistic conduct.


The Sentencing Guidelines


When sentencing for a federal crime, judges must consider not only the § 3553(a) factors, but the United States Sentencing Guidelines. These guidelines were found unconstitutional in US v Booker, 543 US 220 (2005), but the Supreme Court nonetheless held that judges must consider them in sentencing.


The psychological evaluation of Mr. Dorvee showed that he was timid, socially awkward in the extreme, and unlikely to initiate a contact offense with a minor. The evaluation expressed the opinion that Dorvee would not have arranged to meet the undercover officer, had not the officer persisted in having the meeting.


Under the sentencing guidelines, defendant’s offense level was 39 and his criminal history category was the lowest, category I. Under the Guidelines, his sentencing range was actually above the statutory maximum for this crime (20 years). Dorvee was sentenced to 19½ years.


On appeal, Dorvee argued in part that the sentence was substantively unreasonable. The Second Circuit agreed. It noted that the guideline for child pornography has been amended several times at Congress’s direction, each time recommending harsher penalties, instead of using an empirical approach. (The decision noted that “The Commission has often openly opposed these Congressionally directed changes.”)


Enhancements


Under the Guidelines, in addition to a crime’s base offense level, further adjustments — “enhancements” — may be included. Part of the difficulty with the crime of child pornography is that the overwhelming majority of defendants come within most of these enhancements.


Points

Conduct involved

Comment

22

distribution of pornography

previously was 13 points

2

prepubescent minor

94.8% of all cases

5

600 or more images

63.1%

2

use of a computer

97.2%

4

sadistic or masochistic conduct

73.4%

 

First Offender; 14 Years


As a result, said the court: “An ordinary first-time offender is therefore likely to qualify for a sentence of at least 168 to 210 months, rapidly approaching the statutory maximum, based solely on sentencing enhancements that are all but inherent to the crime of conviction.”


The decision continued: “Consequently, adherence to the Guidelines results in virtually no distinction between the sentences for defendants like Dorvee, and the sentences for the most dangerous offenders who, for example, distribute child pornography for pecuniary gain and who fall in higher criminal history categories.”


Another concern is the appropriate punishment for a noncontact offense, such as viewing child pornography, compared to conduct that involves actually contact with another person. The decision noted that, “Had Dorvee actually engaged in sexual conduct with a minor, his applicable Guidelines range could have been considerably lower.” “Irrationality” was how the decision described § 2G2.2.


Sentence vacated


In vacating the sentence and remanding to the Northern District of New York, the Second Circuit commented that district judges are “encouraged to take seriously the broad discretion they possess in fashioning sentences under § 2G2.2 . . . bearing in mind that they are dealing with an eccentric Guideline of highly unusual provenance which, unless carefully applied, can easily generate unreasonable results.”


On remand, Dorvee was sentenced to 121 months.


© 2014 by Gary Muldoon