Divided Eleventh Circuit Orders Longer Sentence for Child Pornography Conviction

August 9, 2010 by David S. Seltzer

As an Orlando child pornography criminal defense attorney, I was very interested to read about a recent appeals court opinion that could affect sentencing for child pornography cases here in Florida. According to the Fulton County Daily Report, a legal-industry newspaper in Georgia, the Eleventh U.S. Circuit Court of Appeals recently ordered an Orlando federal district court to re-sentence a man from 17 1/2 years in prison to 30 years in prison. The opinion, which numbers 256 pages, comes in United States v. William Irey, No. 08-10997 (PDF), and contains one concurrence and four dissents totaling more than 100 of those 256 pages. The case pits sentencing for William Irey, a man accused of very serious child pornography and sexual abuse crimes, against the traditional deference shown to district judges during sentencing.

Irey, a 50-year-old businessman from central Florida, pleaded guilty to one count of leaving the United States to engage in sex with underage girls, producing pornography from those acts and distributing them on the Internet. The Eleventh Circuit describes that pornography as shocking, degrading and tortuous, involving 40-50 Cambodian girls from ages four to 16. Over multiple visits to Asia, Irey took photos and videos of this conduct and put them online, which eventually led to his arrest. The federal statute gives a sentence of 15 to 30 years in prison, although federal guidelines suggest life. At the trial, prosecutors asked for the full 30 years, but Orlando federal judge Gregory Presnell settled on 17 1/2 years and a great deal of supervised release, saying he had been convinced by a psychological defense witness that Irey had a mental illness he did not choose and is treatable. Prosecutors appealed.

A three-judge panel of the Eleventh Circuit upheld the sentence in February. One of those judges wrote separately that he would prefer a higher sentence, but agreed that appeals judges are not authorized to second-guess trial courts. In a very unusual move, the Eleventh then agreed to rehear the case en banc even though prosecutors did not appeal. The resulting six-judge majority overturned Presnell, saying the shorter sentence was unreasonable and an abuse of discretion. The majority -- which included one judge who reversed his position from the original panel -- did not believe pedophilia removed any of Irey’s volition. Rather, they pointed out, Irey took steps to avoid being caught, showing that he had control over his actions.

By contrast, the dissenters focused on what they saw as an improper attempt to dictate Irey’s sentence. Judge Tjoflat, writing alone, suggested that sending the case back for a new sentence without specifying any length would have done less “institutional damage” to the justice system. Judges Edmondson, Birch, Barkett and Martin wrote that while appeals courts can correct unreasonable sentences, the record of this case did not show a lack of reasonable basis for Presnell’s sentence. Birch and Barkett wrote their own dissents as well.

This decision could affect any criminal defense attorney. But it’s particularly relevant to my practice as a West Palm Beach cyber crime criminal defense lawyer because it seems to be partly based on moral disapproval of Irey’s crimes. (For example, the opinion notes with disapproval that he cheated on his wife with prostitutes, which was not at issue here.) Those crimes are shocking, and I agree that Irey deserves penalties. I am sure that the dissenters on the Eleventh Circuit feel the same. But as those dissenters pointed out at length, it is not the role of appeals courts to determine sentences. Our legal system has this rule because trial courts hear facts and see witnesses in person, while appeals courts do not -- making trial courts better placed to take the full circumstances into account. By stepping into the role that properly belongs to a trial judge, the dissenters say that the Eleventh Circuit has violated basic rules of the justice system and legal precedent.

Just as importantly for my practice as a Miami-Dade child pornography criminal defense attorney, this decision could declare open season on any criminal sentence that appeals judges happen to dislike. That is, if this decision is allowed to stand, it will allow appeals courts to change sentences on the vague grounds that they believe the crime was too serious to allow anything less than the maximum permitted sentence. It’s not hard to imagine a situation in which this could create an injustice by taking sentencing power away from the judge who heard actual testimony. No matter how strongly we disapprove of William Irey, this way of addressing it is bad for the integrity of the justice system.