Seventh Circuit Dismisses Appeal of Sentence Total That Exceeds Statutory Maximum - U.S. v. Craig

December 26, 2012 by David S. Seltzer

Because child pornography crimes carry very high sentences, many of the appeals are appeals only of the sentence, rather than appeals of the conviction itself. Defendants may believe it's easier to win an appeal of the sentence for several reasons: the length of the final sentences, the difficulty of challenging a conviction on a possession crime, and the convoluted sentencing guidelines created by ever-tougher laws from Congress. United States v. Craig is one case in which the complex sentencing guidelines may have created an opportunity for an appeal. David Michael Craig was convicted of producing child pornography; the sentencing guidelines said the sentence should be life in prison, but the statutory maximum for each individual count was 30 years in prison. The judge ultimately handed down a 30-year sentence and three concurrently-served 20-year sentences. The Seventh U.S. Circuit Court of Appeals ultimately dismissed the appeal as frivolous.

Craig sexually assaulted a friend of his daughter's when the victim was between the ages of 11 and 14. He took photographs of the assaults, which created some of the child pornography he was accused of producing; the remainder, he obtained by threatening to kill her unless she sent him more pornographic images. He ultimately pleaded guilty to four counts of producing child pornography. His total offense level was 43, meaning his guidelines sentence for each count was life in prison. However, the judge was unable to impose life sentences because the statutory maximum for each count was 30 years. Instead, the judge handed down a 30-year sentence to be served consecutively with three concurrent 20-year sentences, for a total of 50 years in prison (a de facto life sentence for the 46-year-old Craig).

The Seventh Circuit noted that the judge had ample precedent for this decision. the guidelines instruct district courts to sentence consecutively if necessary to bring sentences into the guidelines range, even if the total sentence would then exceed the statutory maximum for any count of which the defendant was convicted. Nonetheless, Craig appealed. The Seventh further noted that Craig's attorney filed a motion to withdraw after concluding that the appeal was frivolous, since guidelines sentences are presumed reasonable and nothing in the record gave him grounds for appeal. It granted the attorney's motion to withdraw, then dismissed the appeal. Judge Posner concurred separately to emphasize to trial judges that imprisoning the elderly is expensive and may have little value, which should be considered when imposing life sentences.

As a cyber crime attorney, I'm surprised and pleased to see a discussion of the costs of imprisonment from the appeals courts. Generally speaking, appeals courts don't have to concern themselves with practicalities; their job is to apply the law correctly, and they never look at the facts of the case except for guidance on applying the law. However, I strongly agree that longer and longer sentences don't necessarily benefit society. As the judge pointed out, the financial cost of incarceration includes medical care for elderly prisoners as well as room and board; the deterrent effect is minimal; and while older people do commit sex crimes, they do so in much smaller numbers. Unfortunately, this kind of analysis is rarely undertaken when Congress votes to increase sex offender sentences yet again, since the primary motivation for such laws is impressing voters.

If you're charged with an online sex crime or any other type of cyber crime, don't wait to call Seltzer Law, P.A. Lead attorney David Seltzer is an experienced former cyber crime prosecutor who focuses his practice on online and technology crimes. For a free consultation, send us a message online or call 1-888-THE-DEFENSE (1-888-843-3333) today.

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