Prior Conviction for Sexual Battery Should Not Enhance Sentence for Child Pornography Crime – U.S. v. Gardner

August 29, 2011 by David S. Seltzer

As a south Florida cyber crime criminal defense attorney, I’ve written here before about the harsh standard sentences handed down to child pornography defendants. A past conviction for a related crime can make those mandatory minimums even longer — but as the Sixth U.S. Circuit Court of Appeals found recently, the past crime must be genuinely related. In United States v. Gardner, Daniel Roy Gardner was sentenced to less than the 15-year mandatory minimum sentence for child pornography possession, because the judge was not satisfied that a previous conviction for sexual battery on his daughter applied as a sentence enhancer. Gardner was instead sentenced to nine years, and the prosecution appealed. The Sixth Circuit upheld the sentence.

Gardner was convicted in Virginia of indecent liberties with a child for acts on his daughter, Pride, who was 15 to 17 at the time of the assaults and suffered from a rare form of cancer. She died in 1998. In 2005, computer security software found child pornography on the computer Gardner used at work, and a followup visit by the FBI found 650 images and videos of child porn at Gardner’s home. A background check turned up Gardner’s Virginia conviction. However, most files were destroyed, and the existing paperwork was unclear as to whether Gardner had been convicted of sexual battery or indecent liberties with a child. This mattered because only a prior conviction for a child sex crime can trigger the higher mandatory minimum. Gardner pleaded guilty to possession of child pornography but objected to the enhancement, and the judge in that case ultimately decided there was not enough evidence to apply the enhancement. The prosecution appealed to the Sixth Circuit.

The Sixth upheld the sentence, finding that Gardner’s prior conviction did not involve sexual abuse of a minor. Under Supreme Court and Sixth Circuit precedent, it said, it was required to consider only the facts in the judicial record that the defendant agreed to (when the defendant pleads guilty). In this case, Gardner pleaded guilty to sexual battery, a Virginia crime that does not require that the victim be a minor. The indictment in that case said the minor was a child under age 18, but caselaw required the court to look only at the facts in the indictment to which Gardner actually pleaded guilty, the Sixth said. It also dismissed prosecutors’ claims that Gardner agreed to the facts in a Virginia pre-sentencing report because he failed to contest those facts. The Sixth agreed with the district court that the validity of the PSR was questionable. The PSR was inconsistent with other case documents as to both the conviction and the date; bore no official stamp and was dated before a hearing on additional facts. Because this strongly suggested it was not the final PSR to which Gardner assented, the appeals court declined to weigh it in the sentencing. Thus, it upheld the district court.

In the cases the Sixth Circuit discussed, the question is whether defendants can be sentenced later according to crimes they were charged with, or only the crimes they were convicted of. Though this may not seem like a big difference to people not involved in criminal justice, it’s very important to a Miami-Dade child pornography lawyer like me. Just because you are arrested or indicted for a crime does not mean you will be convicted of that crime. Anytime along the way, law enforcement could drop the charges or reduce them to lesser charges. A judge could dismiss the charges. Defendants can choose to plea-bargain and plead guilty to a lesser crime. And of course, defendants can be found not guilty in a court of law. Helping my clients achieve one or more of these results is my job as a Fort Lauderdale child porn defense attorney.

If you’re charged with any kind of serious online crime, you need an attorney who understands technology as well as the law. For a free, confidential case evaluation, call Seltzer Law, P.A. You can reach us 24 hours a day and seven days a week at 1-888-THE-DEFENSE (1-888-843-3333) or send us an email.

Similar blog posts:

Appeals Court Upholds Conviction for ‘Knowing’ Distribution of Child Porn – U.S. v Collins

More on Sentencing for Online Crimes From a Miami Cyber Crime Criminal Defense Lawyer

South Florida Cyber Crime Criminal Defense Attorney on the Importance of Understanding Technology in Cyber Crimes