Federal Judge Refuses to Sentence Child Porn Defendant to More Than One Day in Prison – U.S. v. Bistline

July 8, 2013 by David S. Seltzer

I was very interested to see a recent federal appellate ruling involving a trial judge who outright refused to sentence a child pornography defendant according to the U.S. Sentencing Guidelines. The Sixth U.S. Circuit Court of Appeals decided U.S. v. Bistline for the first time in January of 2012 and again June 27. Richard Bistline was caught in possession of child pornography and ultimately pleaded guilty to possession. The district court judge originally sentenced him to one day in the courthouse lockup, three days of home confinement and 10 years of supervised release. The Sixth Circuit originally agreed with the prosecution that this was a substantively unreasonable sentence; Bistline was eligible for just over six years in prison according to the Guidelines. On remand, however, the judge changed only the amount of home confinement. Saying that the sentence was still unreasonable, the Sixth Circuit remanded the sentence to a new judge.

Bistline, 67, was caught in possession of child pornography by law enforcement officers who found him sharing it on LimeWire. A month later, officers arrived at his home with a search warrant and confirmed that he had the child pornography, including 305 images and 56 videos, largely of girls under 12 being raped by adult men. He pleaded guilty. At the sentencing hearing, the district judge said he believed the Guidelines for child pornography possession “are seriously flawed” as a result of Congressional involvement. It then reviewed mitigating factors for Bisline, including several cited by the probation officer’s sentencing report: his age, his role as caretaker for his wife, two strokes he had suffered, and his lack of prior criminal convictions. The prosecution objected strenuously and asked to brief the issue, which was granted. The court ultimately didn’t change its mind.

On the first appeal, the Sixth Circuit ruled that the sentence was substantively unreasonable and remanded with orders to use the Guidelines as a starting point. On remand, the court changed only the amount of time under house arrest, repeating its concerns about the Guidelines and saying that “If I have got to send somebody like Mr. Bistline to prison, I’m sorry, someone else will have to do it.”

On the second appeal, the Sixth Circuit agreed with prosecutors that someone else should have that chance. It faulted the district court for failing to use the Guidelines as a starting point. It further faulted the judge for failing to explain why he feels the Gudelines ranges are not helpful. He did give reasons for not liking two of the sentence enhancements Bistline was subject to, the Sixth said, but even the base offense level puts the sentence at around three years. The Sixth further disagreed with what it saw as the district judge’s belief that Bistline was not very culpable. For example, though Bistline is not a sophisticated computer user, the court noted that the software didn’t download the materials for him. And old age and poor health alone are not adequate to justify such a light sentence, the court added. It remanded for reassignment and resentencing.

I’m particularly interested in this judge’s statements on the Sentencing Guidelines for child pornography crimes, because the U.S. Sentencing Commission has recently recommended reforms to those Guidelines. Some of those reforms parallel the judge’s objections; for example, it’s recommended that Congress eliminate the sentence enhancement for using a computer, because almost all of the child pornography crimes involve a computer. And the judge’s belief that Congress has interfered too much with child pornography sentencing is widely agreed with among criminal defense attorneys like me. The U.S. Supreme Court has ruled that the Guidelines are not mandatory, but unless Congress has the courage to reform child pornography sentencing, I’m afraid reversals like this will continue.

If you’re charged with a child pornography crime, don’t wait to call Seltzer Law, P.A., to discuss how we can help. Based in Miami, we represent clients around the United States who are charged with serious cyber crimes. You can call us anytime at 1-888-THE-DEFENSE (1-888-843-3333) or send us an email.

Similar blog posts:

U.S. Sentencing Commission Recommends Major Changes to Penalties for Child Pornography

Momentum Grows for U.S. Sentencing Commission to Revise Child Porn Guidelines

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