Second Circuit Rules Sentence Too Low in Child Pornography Distribution Case – U.S. v. Reingold
I am a firm believer that the federal sentences for child pornography possession and distribution are inflated, and I’m not the only one. As I’ve noted here many times, the U.S. Sentencing Commission put out a report recommending significant changes to the sentencing guidelines for these crimes, because of beliefs that they create sentences that are too long for some situations and too short for others. So I was not that surprised to see an opinion concerning a radical downward departure from the sentencing guidelines for a defendant from New York. Corey Reingold was sentenced to two and a half years in federal prison for one count of distributing child pornography. This was half of the mandatory minimum, noted the Second U.S. Circuit Court of Appeals in U.S. v. Reingold, and also disregarded certain sentence enhancements. It sent the case back for resentencing.
Reingold pleaded guilty to one count of distributing child pornography, after FBI identified him as a sharer of child porn on a file-sharing network. Reingold was 19 and still living at home in Queens. During the pendency of the case, Reingold admitted to also having had sexual contact with his half sister, who was between 8 and 11 during the incidents. His mandatory minimum was five years in prison, or 60 months; his Guidelines range was 168 to 210 months, based on sentence enhancements for type and number of images, use of a computer, distribution method not contemplated by the Guidelines, and a pattern of abusing his sister. However, the district court rejected some of these enhancements as unwarranted. The resulting range was 63-78 months in prison. The court then departed downward to 30 months, saying the longer term was longer than necessary to achieve federal objectives, and the mandatory minimum would be cruel and unusual punishment considering Reingold’s age and the passivity of his crime.
The prosecution appealed and the Second Circuit agreed that the case should be sent back for a new sentence. It first agreed that the mandatory minimum was not a violation of the Eighth Amendment. Under Supreme Court precedent, a punishment is cruel and unusual when it’s grossly disproportionate to the crime. But reversal is very rare under this standard, the Second said. The offense here is very serious, the Second said; child pornography creates a permanent record of a rape that can itself be traumatic. Nor is the sentence grossly disproportionate, the court said, because consuming child porn feeds the market for creating it, and because many federal crimes carry five-year sentences for first offenders. The court also rejected the judge’s stated reasons for ignoring the sentence enhancements. It was irrelevant that Reingold’s pattern of abusing his sister took place while he was a minor or that they were far apart, the court said; the use of a computer enhancement is not “double counting”; the distribution enhancement is not “double counting” even when the base charge was already distribution; and it doesn’t matter what Reingold’s primary purpose for distributing the material was. It remanded the case for resentencing and instructed the court to use the mandatory minimum.
I sympathize with the intentions of the district court judge in this case. This case is not a bad example of why the Sentencing Guidelines for child pornography crimes need to be reformed. The fact that defendants can be charged with distributing child pornography and then have their sentences enhanced for distributing child pornography does seem like double-counting; the court may have taken that argument more seriously if it hadn’t disagreed so strongly about the rest of the case. And as the Sentencing Commission noted in arguing for the abolition of the use of a computer sentence enhancement, almost every child pornography case is now a cyber crime; the enhancement is meaningless. And as a criminal lawyer, I have strong reservations about mandatory minimum sentences, which substitute broad, politically charged decisions for judicial discretion.
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