A Small Light At The End Of The Tunnel?


As a criminal defense lawyer I frequently have to explain the federal sentencing guidelines to people.  The guidelines are complicated, often counter-intuitive, and harsh.  For years I, along with every other criminal defense lawyer, have been complaining to anyone who will listen about the unfairness of the 2G1.1, the guideline that applies to child pornography offenses.

Much of 2G1.1 defies logic.  For example: it creates enhancements for use of a computer because apparently using a computer to obtain illicit material is more sophisticated that obtaining the same material through the mail.  The likelihood of getting caught downloading images is substantially greater than the likelihood of getting caught receiving similar material through the mails.  Anyone not using a computer is engaging in far more sophisticated criminal conduct.  How does using a computer cause more harm than using the mails?  The harm occurs when the victim’s image is seen again and again.  The harm doesn’t change because the media used to view the image changed.

I have yet to encounter a case that does not qualify for the enhancement because the materials contained images of sadistic or masochistic images.  This is not because the images actually depicted conduct most people would consider either sadistic or masochistic but rather because the definition of sadistic or masochistic includes almost everything.  How can it be a specific conduct enhancement if it applies to virtually every criminal case?

My personal ‘favorite’ is calculating videos of child pornography.  One video counts the same as 75 images.  Why 75 images?  Why not 70?  Why not 100?  Why not 302?  If we’re going to pick arbitrary numbers to inflate people’s sentences then let’s really be arbitrary.  This particular specific conduct enhancement, which by the way applies in nearly every child pornography case, is arguably the least supported by any empirical evidence.  I have yet to hear any explanation, let alone a rationale one, for why one video counts as 75 images.

Many, if not all, of the major flaws with 2G1.1 came about with the Feeney Amendment.  The number of images along with many of the other co-called Feeney Amendments have not received the same levels of judicial respect in recent years.  The Sentencing Commission has been promising a fix for several years – we’re still waiting.

Another favorite area of sentencing guideline irrationality is acquitted conduct.  Acquitted conduct goes something like this:  Defendant goes to trial on 6 counts.  Defendant is acquitted on all but one count. In fashioning a sentence for the one that for which the defendant was convicted the court gets to consider the conduct alleged in the 5 counts the jury acquitted on.  [The legal rationale, to the extent there is one, is that an acquittal means the government failed to establish guilt beyond a reasonable doubt.  In order for sentencing enhancements to apply the government’s legal burden is either a preponderance of the evidence or clear and convincing evidence – both of which are less than beyond a reasonable doubt.  Of course this completely and totally ignores the jury’s verdict and undermines public confidence in the jury system].  While I can articulate the legal principles about how acquitted conduct can be used to enhance a sentence how such an enhancement is either fair or just evades me.   It seems the acquitted conduct enhancement should violate Apprendi.

In 2007 Judge Fletcher wrote a stinging dissent in United States v. Mercado 474 F.3d 654 in which she would have ruled acquitted conduct violates Apprendi particularly in a post-Booker world.

Apprendi made clear that “the relevant inquiry is one not of form, but of effect-does the required finding expose the defendant to a greater punishment than that authorized by the jury’s guilty verdict?” Apprendi, 530 U.S. at 494, 120 S.Ct. 2348. In this case, the government sought authorization to punish defendants for a number of crimes. The jury authorized punishment for two counts, but withheld authorization for each of the more serious offenses. As a result, the PSR recommended a sentence in the 30-37 month range. The district court added an additional 203-210 months solely on the basis of its finding that defendants had committed the conduct of which the jury acquitted them.
Had the district court not rejected the jury’s finding, defendants would have received a dramatically reduced sentence-a fact disputed by nobody in this case. To hold that any sentence beneath the statutory maximum is acceptable is not enough: Apprendi requires examination “not of form, but of effect.” Id. And here the effect was to expose defendants to a dramatic increase in punishment based upon conduct for which the jury refused to authorize punishment in the only way it could-by acquitting defendants of the most serious conduct with which they were charged. Neither Jones, nor Apprendi, nor Ring, nor Blakely, nor Booker countenance this result.
Why mention a 7 year old dissent?  The Sentencing Commission recently released their final priority list for this amendment cycle.  Priority #10 is begin a multi-year effort to examine the overall structure of the guidelines post-Booker including the use of acquitted conduct.  Perhaps I’m not the only one listening to Judge Fletcher.  While its certainly good that the Sentencing Commission is taking a look at acquitted conduct, priority #11 is to deal with 2G1.1 and the child pornography guidelines, amendments that have been in the works for several years.  Let’s hope that an acquitted conduct amendment won’t take quite as long.