Sixth Circuit Affirms Longer Sentence After Resentencing for Attempting to Entice Minor – U.S. v. Johnson

May 15, 2013 by David S. Seltzer

Because of the long sentences typical in federal child pornography and attempted enticement of a minor cases, it’s not often that I encounter an appeal from someone with two federal offenses. But in United States v. Johnson, the Sixth U.S. Circuit Court of Appeals affirmed a sentence for a defendant who not only had a prior federal offense, but had been re-sentenced after a prior appeal. Robert T. Johnson of Kentucky was convicted in 2001 of transmitting child pornography and attempting to persuade a minor to engage in sexual activity. He served a sentence of five years and three months and a period of supervised release—but when those periods were up, he was caught doing it again. In this appeal, the Sixth Circuit upheld a sentence of 30 years in prison that Johnson received on remand from a prior appeal.

Johnson’s first offense involved his communications with an FBI agent posing as a 14-year-old girl. He sent the “teen” multiple child porn images and arranged for the two to meet for sex. Instead, he was arrested for, and ultimately pleaded guilty to, transmitting child pornography and attempting to persuade a minor to engage in sexual activity. After 63 months in prison and two years of supervised release (a period when offenders’ Internet use is usually supervised), Johnson was once again caught sending multiple images of child pornography and trying to arrange sex with an individual he believed was a 13-year-old girl. This, too, was an undercover police officer. He pleaded guilty to transporting child pornography, sending obscene material to a minor, and possession of child pornography, and ended up with a sentence of 320 months in prison. His first appeal challenged the substantive reasonableness of the sentence, and the prior Sixth Circuit panel remanded, finding an ambiguity in the sentencing.

On remand, Johnson received a 360-month sentence, and again appeals. In a situation where a higher sentence was handed down on remand, the Sixth said, there’s a rebuttable presumption of vindictiveness. However, the court concluded that the judge in this case relied on its previous opinion. The previous opinion said the court couldn’t be sure whether the 320-month sentence was derived from an upward departure from the Guidelines or a downward departure, since it wasn’t clear whether a sentence enhancement for having a pattern of activity involving sexual abuse of a minor. Johnson’s first appeal argued that this enhancement was not applicable. On remand, the court determined that the enhancement does apply because the two convictions for child pornography crimes constituted “a pattern of activity involving the sexual abuse or exploitation of a minor.” Thus, it found that the presumption of vindictiveness was rebutted, and it rejected the appeal of both the sentence and its purported vindictiveness.

The meat of this opinion is rather short, which is disappointing because the court dedicated no effort to discussing what the sentencing guideline means. It’s clear that with more than one offense, Johnson has a pattern of some kind of activity. But I suspect his appeal hinged on an argument that child pornography crimes, and chatting up undercover police officers, do not “involv[e] the sexual abuse or exploitation of a minor,” and that argument wasn’t explored. I should also note the large difference between the sentences for Johnson’s first and second convictions; the second conviction carried about five times as much time in prison as the first. Because the stakes are very, very high for people facing a second charge, it’s absolutely vital for them to hire an experienced cyber crime defense attorney right away.

Seltzer Law, P.A., specializes in defending people accused of serious crimes involving computers, technology and the Internet. Our lead attorney, David Seltzer, is an experienced former cyber crime prosecutor for the Miami-Dade State’s Attorney’s office. If you’re facing charges and you’d like to talk to us about your situation and your options, call today for a free consultation at 1-888-THE-DEFENSE (1-888-843-3333) or send us an email.

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