Eighth Circuit Sends Back Child Porn Case Because Court May Have Considered Rehabilitation – U.S. v. Olson

January 24, 2012 by David S. Seltzer

As a child pornography criminal defense attorney, I know my clients frequently face very long prison sentences for child pornography crimes. This is not just because child pornography crimes are reviled in our society; many of the available sentence enhancements add considerable time and are common. As a result, it’s common to see an appeal of just the sentence for a child pornography case, even when the defendant does not contest the underlying criminal charge. In United States v. Olson, defendant Timothy James Olson of North Dakota challenged his sentence on the relatively new ground of Tapia v. United States, a U.S. Supreme Court ruling that courts may not extend prison sentences for the purpose of rehabilitation or any treatment program. The sentence was ultimately sent back to the district court for reconsideration.

Olson turned himself in to police and admitted molesting his stepdaughter for seven to eight years, starting when she was five years old. In the ensuing investigation, police discovered that Olson also had more than 2,000 digital images of child pornography. The child pornography case was prosecuted federally, with sentencing after Olson pleaded guilty in state court to continuous sexual abuse of a child and began serving 30 years in state prison. He also pleaded guilty in federal court to possession of child pornography, saying at a hearing that he had an addiction. The district court declined to apply a sentence enhancement because it would require Olson’s sentence to run concurrently with his state sentence, instead imposing a top-of-guidelines 108 months to run consecutively with the state sentence. The court expressly said it wanted Olson in the sex offender treatment available in the federal system, because he could not be trusted in the community without “meaningful treatment.”

After this sentencing, the U.S. Supreme Court decided Tapia, saying a sentencing court “may not impose or lengthen a prison sentence to enable an offender to complete a treatment program or otherwise to promote rehabilitation,” because federal law recognizes that prison is not an appropriate means of correction. Olson appealed his sentence.

On appeal, the Eighth U.S. Circuit Court of Appeals agreed that the district court may have considered rehabilitation inappropriately when it decided its sentence. Not only did the district court expressly say it wanted Olson to have access to federal-system treatment, but it expressly rejected a sentence enhancement in order to meet that goal. This would be a direct violation of Tapia, the court said, unlike when a district court merely discusses rehabilitation. And the Supreme Court did not indicate that its decision should be merely prospective. Thus, it remanded the case for resentencing. Judge Benton dissented, arguing that Olson waived the issue by not bringing it up in district court and there was no plain error.

This issue could be helpful for defendants in a wide variety of criminal matters, but as a child pornography possession lawyer, I believe it could be particularly useful to defendants facing child porn charges. Because child pornography cases can be emotional even for judges, those judges may be particularly at risk of handing down sentences that focus on rehabilitation in violation of Tapia. If other circuits follow the lead of the Eighth and apply the ruling retroactively, this could lead to a series of resentencings for defendants given high sentences to start with. Of those, many could be sentence reductions, because Tapia expressly forbade extra prison time intended to accommodate rehab or treatment. As a cyber crime criminal defense attorney, I applaud anything that helps reduce unfairly long sentences.

Seltzer Law, P.A., represents clients across the United States who are facing charges of online or technology crimes, including but not limited to child pornography crimes. To learn more about us or tell us about your case, call us toll-free, 24 hours a day and seven days a week, at 1-888-THE-DEFENSE (1-888-843-3333), or send us a message through our website.

Similar blog posts:

Eleventh Circuit Rules Use of File Sharing Software Does Not Qualify Alone for Sentence Enhancement – U.S. v. Vadnais

Sixth Circuit Dissent Takes on ‘Unconscionably Harsh’ Sentencing for Child Pornography Cases – U.S. v. Overmyer

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