Appeals Court Requires New Child Porn Sentence Taking Defendant’s Circumstances Into Account – U.S. v. Martin

May 29, 2013 by David S. Seltzer

The sentences in child pornography cases are frequently appealed—possibly more frequently than the convictions themselves. That’s partly because the U.S. Sentencing Guidelines currently require very long sentences in child pornography cases, giving defendants a strong incentive to object to any irregularities in their cases. But sentences are frequently upheld by the appeals courts, which is why I was interested to see one that was sent back for re-sentencing from the Seventh U.S. Circuit Court of Appeals. In U.S. v. Martin, William Martin had argued for a lower sentence because of his previous psychiatric problems, low likelihood of recidivism and belief that the Guidelines are excessive. The trial court brushed all of this off, reasoning that child pornography offenders “are not rational thinkers in the first place.” The Seventh Circuit remanded for a new sentence.

Undercover police officers caught Martin sharing child pornography files on a file-sharing network. A search of his home, which he shared with his mother, uncovered hundreds of images and several videos of child pornography. He ultimately pleaded guilty to one count of child pornography possession. His pre-sentencing report noted that Martin had substantial mental health issues, including diagnoses of major depression and multiple types of substance abuse; a history of self-mutilation and suicide attempts; and at least one hospitalization. He was not taking medication or being treated at the time of his arrest because he couldn’t afford it. At his sentencing, Martin argued that he should be sentenced below the Guidelines for several reasons. The district judge nonetheless imposed the statutory maximum of 120 months, citing specific deterrence even though the court also said it believed child pornography offenders were undeterrable because they “are not rational thinkers in the first place. The court also cited the seriousness of the offense and a need to protect the public.

On appeal, Martin renewed arguments that he should have gotten a below-Guidelines sentence because his personal characteristics indicated a low chance of recidivism; the Guidelines produce excessive sentences in possession cases; there’s a resulting trend toward lower sentences, possibly creating a disparity; and his personal contribution to the harm of child porn was necessary. The Seventh Circuit found that the case warrants at least a remand, because the district court appeared to have failed to address several of Martin’s arguments that the Seventh felt deserved serious consideration. In particular, it cited Martin’s argument that the Guidelines are too harsh as to simple possession of child porn, and his arguments about likelihood of recidivism, which were tied to his substantial mental health progress since receiving treatment. The Seventh rejected Martin’s other arguments, as well as an argument that the “irrational” comment was procedural error, before remanding.

I can’t agree strongly enough that the Sentencing Guidelines are unreasonably harsh when dealing with child pornography possession. The U.S. Sentencing Commission has been studying the issue, in fact, and recommended earlier this year that Congress change the Guidelines. Among other problems, the Commission’s report said risk of recidivism no higher for child porn offenders than for other offender types. It also recommended removing some of the sentence enhancements that inflated Martin’s sentence, such as the enhancement for using a computer. Child pornography is now a cyber crime precisely because it’s rare to find someone committing child porn crimes without a computer, and leaving this enhancement on the books doesn’t make children any safer.

Based in Florida, Seltzer Law, P.A., represents clients across the United States who are accused of serious crimes involving computers, the Internet and other technology. For a free, confidential consultation, call us today at 1-888-THE-DEFENSE (1-888-843-3333) or send us a message online.

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