Sixth Circuit Rules Child Porn Sentence Not Unreasonable Despite Defendant’s Military Service – U.S. v. Riley

December 19, 2011 by David S. Seltzer

As a cyber crime criminal defense attorney, I was interested but not surprised to see a recent case rejecting an appeal from a defendant who asked for leniency based on his status as a military veteran. In United States v. Riley, Patrick Michael Riley of Kentucky had pleaded guilty to distributing child pornography. He was turned in by a woman he had been flirting with online, who contacted police after he suggested having sex with her and a child at the same time. At sentencing, Riley argued that a brain injury suffered during his three combat tours in Iraq and Afghanistan, combined with pain medications for other serious injuries, let to his interest in child pornography. The court rejected his plea for a downward departure and sentenced him to the minimum available under the sentencing guidelines. The Sixth Circuit affirmed.

The woman who contacted the police told them in early 2008 that he had proposed sex with a child and sent her five videos of child pornography. The police began posing as the woman online and told Riley that a 14-year-old girl had moved in to “her” home. He sent instructions for “grooming her for sexual activity,” then more videos, which he saw as instructional. He planned to meet them for sex and videotape the acts. However, police raided his home instead and seized a computer with a lot of child pornography as well as an attempt to have sex with another woman’s three-year-old. Riley ultimately pleaded guilty to two counts of distributing child pornography. In a presentencing memo, he moved for a downward departure to his sentence based a decade of service with the Army, including three tours in Iraq and Afghanistan in which he suffered repeat concussions and a broken back. A psychologist testified that his brain injury and pain medications generated his interest in child pornography, but the court denied the motion and sentenced Riley to 151 months in prison.

Riley appealed, arguing that the sentence was substantively unreasonable, arguing that a departure was appropriate because of his lack of criminal history and “beautiful” military record. The Sixth Circuit was not persuaded. The U.S. Sentencing Guidelines exist to give some uniformity to criminal sentencing, though they don’t lock judges into specific ranges. Though the Guidelines do identify military service as a possible factor in a downward departure for sentencing, the Sixth said, Congress has expressly said that child crimes and sex crimes are not to be treated like other crimes. For those, the only acceptable departures are “expressly enumerated” in Sec. 5K of the guidelines, and that section does not mention military service or a clean criminal history, the court said. The commentary to the Guidelines notes this different standard and says judges should not use downward departures to make judgments on policy. Thus, Riley’s motion was legally inappropriate and the trial court’s decision was correct, the court said.

One thing that stuck out to me about this decision, as a child pornography possession defense lawyer, was the Guidelines’ statement that judges should not substitute their policy judgments for that of Congress. This principle is how child pornography sentences have become so long that they sometimes eclipse sentences for in-person abuse of a child. Riley’s sentence is just over 12 and a half years, and it’s the lowest end of the appropriate scale for someone with no criminal record. Congress undoubtedly means well, but it’s subject to political pressures from voters who don’t understand the justice system but know that they find child sex crimes abhorrent. Thus, it’s politically easy to increase the minimum sentence, but difficult for judges to justify a departure when they encounter a case that might justify it. As a solicitation of a minor defense attorney, I believe judges should retain the discretion to show mercy when the circumstances warrant.

Seltzer Law, P.A., represents clients across the United States who are facing serious criminal charges related to child pornography or other online crimes. Our lead attorney, David Seltzer, is an experienced former cyber crime prosecutor. For a free consultation, send us an email or call anytime at 1-888-THE-DEFENSE (1-888-843-3333).

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