What the Government Won't Like #2

 What follows are excerpts from United States v. Dorvee, 916 F.,3d 174 (2d Cir 2010). Be aware that the subject is child pornography. This case applied only to the Second Federal although it has garnered attention from the other federal circuits for what it says about the federal Sentencing Guidelines,  a Rube Goldberg device (no state has followed them to my knowledge). I think the following explains why the Guidelines lead to sentences far above the statutory minimum (5 years) and why the Second Circuit does not require use of them. 

Though we recognize the importance of punishment and deference, we nevertheless find Dorvee's sentence substantively unreasonable. First, we are troubled by the district court's apparent assumption that Dorvee was likely to actually sexually assault a child, a view unsupported by the record evidence yet one that plainly motivated the court's perceived need "to protect the public from further crimes of the defendant." 18 U.S.C. § 3553(a)(2)(C). We believe that this assumption, in the face of expert record evidence to the contrary, caused the district court to place unreasonable weight on this sentencing factor...The district court stated that "[f]or an adult of Justin's age to engage in sexual conduct with somebody under the age of 14 ... I think is extremely hurtful.... [I]t might be worse than sticking somebody with a knife or shooting them with a gun." Id. Dorvee, however, is not alleged to have had any actual contact with children (undercover or real) under 14, and admitted only to taking non-explicit photographs of children's feet. Dorvee appears to have been punished as though he already had, or would, sexually assault a child, despite medical testimony to the contrary and Dorvee's lack of any such criminal history....

***

These errors were compounded by the fact that the district court was working with a Guideline that is fundamentally different from most and that, unless applied with great care, can lead to unreasonable sentences that are inconsistent with what § 3553 requires. Sentencing Guidelines are typically developed by the Sentencing Commission using an empirical approach based on data about past sentencing practices. See Rita v.   However, the Commission did not use this empirical approach in formulating the Guidelines for child pornography. Instead, at the direction of Congress, the Sentencing Commission has amended the Guidelines under § 2G2.2 several times since their introduction in 1987, each time recommending harsher penalties. See United States Sentencing Commission, The History of the Child Pornography Guidelines, Oct. 2009, available at http:// www.ussc.gov/general/20091030_History_ Child_Pornography_Guidelines.pdf (last visited April 19, 2010)....

And the kicker: 

The irrationality in § 2G2.2 is easily illustrated by two examples. Had Dorvee actually engaged in sexual conduct with a minor, his applicable Guidelines range could have been considerably lower. An adult who intentionally seeks out and contacts a twelve year-old on the internet, convinces the child to meet and to cross state lines for the meeting, and then engages in repeated sex with the child, would qualify for a total offense level of 34, resulting in a Guidelines range of 151 to 188 months in prison for an offender with a criminal history category of I.[11] Dorvee, who never had any contact with an actual minor, was sentenced by the district court to 233 months of incarceration. What is highly ironic is that the district court justified its 233-month sentence based on its fear that Dorvee would sexually assault a child in the future.

 And it that last paragraph contains what I think the government will not like. My judge told me my sentence of 151 months was to deter others. That was by me. However, the Second Circuit is correct about an actual child molester would get a lesser sentence. Feel free to read United States v. Henzel to confirm my statement. So, the severe child pornography Guidelines serve to deter people from doing what?

Yeah, that's what you are getting for tax dollars.

I would prefer thinking that anyone reading this will not think there is leniency in the federal system. You will go to prison for years under the federal laws. I would hope those reading this looking for a thrill will find another way to get your kicks. For those with a yen for pictures of underage people, get rid of them and get help (but do not mention the pictures, that's a ticket to prison). 

sch