Eighth Circuit Rejects Argument That Child Pornography Sentencing Guidelines Are Inflated – U.S. v. Black

March 26, 2012 by David S. Seltzer

As a child pornography possession defense attorney, I have a lot of sympathy for the idea that sentencing guidelines for child pornography crimes are overinflated. Indeed, so do federal judges; they depart downwardly from the child porn sentencing guidelines more often than from the guidelines for any other crime. Part of the problem is that Congress likes to make laws about child pornography because they are popular with voters, so it has passed several laws that increase sentences past the U.S. Sentencing Commission’s decisions. The problem is so clear that the Sentencing Commission held a hearing in February to discuss improvements to the guidelines. Nonetheless, an appeal based partly on the argument that the guidelines are inflated did not pass muster with the Eighth U.S. Circuit Court of Appeals in U.S. v. Black.

Scott Kinsey Black of Missouri pleaded guilty to two counts of child pornography possession after an arrest not documented in the opinion. After his guilty plea, he filed a sentencing memo arguing for a sentence of probation, given his personal history and the nature of the offense. In that memo, he argued that the child pornography sentencing guidelines often create a sentence much greater than required to serve the statutory purposes of sentencing. The court was unimpressed. It calculated a range of 78 to 97 months in prison, then departed downward to 60 months, citing Black’s lack of a criminal record, his mental health history and the need to avoid an unwarranted sentencing disparity. It also set, as a condition of Black’s release, a lifetime of supervised release in which Black will have to get written permission from his probation officer to use a computer, since he had used a computer in the crime.

Black appealed, arguing that the sentence was substantively unreasonable and failed to consider his argument that child porn sentences are overinflated. He also challenged the supervised release condition. The Eighth Circuit upheld all three decisions. Though the district courts normally address all arguments raised in sentencing memos, it said, they do not have to address them all. Black had an opportunity to bring up his overinflation argument at the sentencing hearing when the court asked if there were any other factors to consider, but did not. Failure to discuss the argument does not mean the court did not consider it, the Eighth said. It also affirmed the sentence as substantively reasonable. Sentences within guidelines are presumed reasonable, the court said, and this one actually departed downward. Failure to depart still further is not an abuse of discretion, the Eighth said. Finally, it found no plain error in the Internet restriction, finding in general that such restrictions are not an abuse of discretion when they are not total bans and evidence shows use of a file-sharing program.

This last decision is interesting to me as a cyber crime criminal defense lawyer, because computers and the Internet are now a fact of modern life. Such a ban would require a probation officer to grant Black written permission to do almost any job, including something like waiting tables at a restaurant that uses a computerized system to place food orders. This could make it even harder for Black to get a job and move on with his life after prison, reducing his ability to rehabilitate. Punitive measures frequently appeal to the public and to politicians trying to appease the public, but it’s best for everyone if the defendant has a real chance of rejoining society. That includes clients represented by child pornography criminal defense attorneys like me.

Seltzer Law, P.A., represents clients around the United States who are accused of serious crimes involving computers, technology and the Internet. Lead attorney David Seltzer is a former cyber crime prosecutor in Miami-Dade County with substantial experience handling these intricate cases. To learn more or for a free consultation, call us toll-free at 1-888-THE-DEFENSE (1-888-843-3333) or send us an email.

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Seventh Circuit Reverses Conviction for Child Porn Defendant After Jury Shown Inappropriate Videos – U.S. v. Loughry

Tenth Circuit Upholds Sentence for Supervised Release Violations Despite Lack of Child Porn Evidence – U.S. v. Olinger

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