The Tenth Circuit was busy last week. It published four relevant criminal decisions. We've already talked about three. This is the fourth: United States v. Morrison. Because of its significance, we've decided to break down the case in two separate posts (so you'll get Part II tomorrow).
The first issue the Court addressed in Morrison asked whether the district court gave too much deference to the admittedly flawed child pornography Guideline (USSG 2G2.2). The argument centered on the 2-level enhancement for use of a computer, an enhancement that is applied in almost every child pornography case. The Court did not deny that a district court could vary downward if it disagreed with the child-pornography Guideline, but it made clear that district courts do not have to do so. The Court further found the district court's brief explanation as to why it refused to do so in this case to be sufficient. The Court thus affirmed the sentence.
The facts of this case deserve mention. The defendant possessed 20,000 images of child pornography. He distributed child pornography as well. Although charged with both distribution and possession, the government allowed him to plead only to the possession charge, reducing the statutory penalty range from 5-to-20 years to a statutory maximum of 10 years. This is not something that happens in all jurisdictions. The effect of this charging decision also reduced the offense level by 4 (see 2G2.2(a)). The Guidelines range went from 151 months on the low end, to 121 months on the low end, to 120 months (the statutory maximum). The defendant received the 120-month sentence. In other words, there are likely more sympathetic cases than this one (although we do not mean to suggest that we think a 10-year sentence was reasonable in this case).
So this case does not mean that you should stop arguing for variances in child pornography cases. You should continue to make those arguments. The Guideline is still flawed, and the Commission has again identified its revision as a policy priority this upcoming year.
One last point: although the defendant did not raise a substantive reasonableness argument, the Court still noted that it "may" apply a presumption of reasonableness to within-Guidelines-range sentences. Tom Bartee, our Branch Chief in Kansas City, is at the Tenth Circuit tomorrow, and he is trying to convince the Court not to apply such a presumption in cases involving 2G2.2 (basically because the Sentencing Commission itself has said that the Guideline is flawed). There are actually Circuits that do not apply presumptions of reasonableness to within-Guidelines-range sentences. So the argument has some force (we think a lot of force).
More on this case tomorrow.