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Eighth Circuit Finds Child Porn Sentence ‘Substantively Unreasonable’

by Dale Chappell

In a rare move, the U.S. Court of Appeals for the Eighth Circuit found that a sentence imposed for a violation of probation in a child pornography case was “substantively unreasonable” and that the sentencing court failed to explain why it imposed such a heavy sentence. 

Originally sentenced to five years of probation for an offense that typically nets at least a decade and often much longer in prison, Colin Michael violated that probation and wound up getting eight years in prison. But the Eighth Circuit ruled the sentence was unreasonable. 

Experts at Michael’s original sentencing testified that his Asperger Syndrome caused “significant developmental difficulty” and that his psychosexual and psychological development “plateaued” in his early teens. They described Michael as an “adolescent” who behaved like a child 9 or 10 years old and who had an “obsessive preoccupation with things on the internet.” 

Michael also attended sex offender treatment about a year prior to sentencing. The doctor who treated Michael said he expected him to lapse, which he said was common for those involved in pornography. 

Such lapses then become part of prevention planning, he said. With continued treatment, experts said Michael was a lower risk for recidivism. 

The sentencing court said it gave “considerable consideration” to those experts and the “best solution” was probation, which would “serve the ends of justice.” The Government didn’t appeal the sentence. Unfortunately for Michael, the new judge assigned to his probation revocation didn’t agree. Instead, she rejected the original judge’s reasoning, saying that “with 20/20 hindsight that was the wrong assessment.” She believed Michael “knows in his heart he was viewing child pornography, just wasn’t caught.” Based on this reasoning, she imposed the 8-year prison sentence, just one month below the bottom of the original Guidelines range. Michael appealed. 

In finding a violation of probation, a court has two options: (1) continue probation with or without adding conditions or extending the term, or (2) revoking probation and resentencing under the sentencing provisions of Title 18, which requires consideration of “the applicable guidelines or policy statements issued by the Sentencing Commission.” The policy statements in Chapter 7 of the Guidelines require the court to “grade” the violation by the offense’s maximum penalty range and then to consult the “Revocation Table” for the Guidelines range for the violation. 

Here, the district court judge did none of this. The court, instead, referred to Michael’s original Guidelines range of 97 to 120 months and based her revocation sentence on that. This error alone required remand, the Eighth Circuit said in a per curiam opinion. 

But more significantly, the Court of Appeals also found that Michael’s revocation sentence was “substantively unreasonable.” The new judge, the Court said, did not familiarize herself with “the entire history” of the case to grasp Michael’s “unique circumstances and characteristics.” For example, there was “extensive testimony” by the experts at the original sentencing hearing about Michael’s Asperger Syndrome and how it affected his development and likelihood of lapses in judgment. But the records showed the judge was uncertain about Michael’s mental illness. 

The Court also criticized the judge’s comment that Michael “knows in his heart he was viewing child pornography, just wasn’t caught.” No evidence was presented to support this comment, the Court said. Thus, the sentence may have been based on facts not in the record. 

Accordingly, the Court found the judge’s uninformed basis for the sentence rendered it “substantively unreasonable” and remanded for resentencing. See: United States v. Michael, 909 F.3d 990 (8th Cir. 2018). 

Writer’s note: While Michael’s case was a probation violation, the Court’s reasoning underscores the need for a sentencing judge to consider the “entire history” of the case and the “unique circumstances and characteristics” of the person being sentenced in every case. Failure to do so, especially when the court varies greatly from the Guidelines range, could make the sentence “substantively unreasonable” (compared to “procedurally unreasonable,” when a court merely fails to abide by sentencing rules and procedure). 

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United States v. Michael




 

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