Sentencing Commission’s Report on Federal Child Pornography Offenses Part 1

The Sentencing Commission issued its long-awaited report to Congress on federal child pornography offenses. The purpose of the report “is to contribute to the ongoing assessment by Congress and the various stakeholders in the federal criminal justice system regarding how federal child pornography offenders are prosecuted, sentenced, incarcerated, and supervised following their reentry into the community.” In the conclusion of the “Executive Summary” the report states: “The Commission believes that the . . . current guideline produces overly severe sentencing ranges for some offenders, unduly lenient ranges for other offenders, and widespread inconsistent application. A revised guideline that more fully accounts . . . the full range of an offender’s collecting behavior, the degree of his involvement in a child pornography community, and any history of sexually dangerous behavior – would better promote proportionate sentences and reflect the statutory purposes of sentencing. Such a revised guideline, together with a statutory structure that aligns the penalties for receipt and possession, would reduce the unwarranted sentencing disparities that currently exist. The Commission also suggests that Congress may wish to revise the penalty structure governing distribution offenses in order to differentiate among the wide array of newer and older technologies used by offenders to distribute child pornography. Finally, the Commission also recommends to Congress that it consider amending the notice and restitution statutes for victims of child pornography  .” The report is available on the Sentencing Commission’s web site.

The Justice Safety Valve Act of 2013
On March 20, Senator Patrick Leahy (D-VT) and Senator Rand Paul (R-KY) introduced The Justice Safety Valve Act of 2013 (S. 619). The bipartisan federal bill would create a “safety valve” that would allow federal courts to impose sentences below the mandatory minimum sentence under specific conditions. The Act authorizes federal courts to depart below a statutory mandatory minimum sentence only after finding, among other things, that providing a particular defendant a shorter sentence — say, seven or eight years in prison for a drug offense rather than the 10 year mandatory minimum — will not jeopardize public safety. The bill does not require judges to impose shorter sentences, and for many crimes, the mandatory minimum established by Congress will be appropriate. But in cases where the mandatory minimum does not account for the offender’s limited role in a crime or other relevant factors, the judge would be allowed to consider those factors and craft a more appropriate sentence. Finally, the bill requires a judge to state on the record why the mandatory minimum sentence in that particular case is not necessary to protect public safety. The full text of the bill is available at: http://legaltimes.typepad.com/files/alb13158.pd

Henderson v. United States
— U.S. —-, 133 S. Ct. 1121 (2013)
Error is plain as long as it was plain at time of
appellate review

The defendant pled guilty to being a felon in possession of a firearm and was sentenced to an above-guideline sentence of 60 months, based primarily on the district court’s desire to “try to help” the defendant by qualifying for the drug treatment program. Trial counsel did not object. While the appeal was pending, the Supreme Court decided Tapia v. United States, 564 U.S. —, 131 S. Ct. 2382 (2011), where it held that it was error to “impose or lengthen a prison sentence to enable an offender to complete a treatment program or otherwise to promote rehabilitation.” Consequently, Tapia made the defendant’s sentence unlawful, and the district court’s decision to impose that sentence was erroneous. However, because trial counsel had not objected, the Fifth Circuit had to decide if the error was “plain” under Rule 52(b) of the Federal Rules of Criminal Procedure. The error was not plain before Tapia; it was plain after Tapia. “Thus, the Fifth Circuit had to determine the temporal scope of Rule 52(b)’s words ‘plain error.’” In doing so, the Fifth Circuit determined that Rule 52(b) did not give it authority to correct the error because the error was “plain” under the Rule only if it was clear under current law at the time of trial. In this case, Circuit law was unsettled until Tapia was decided. The Court reversed, holding that “[r]egardless of whether a legal question was settled or unsettled at the time of trial, an error is “plain” within the meaning of Rule 52(b) so long as the error was plain at the time of appellate review. “We conclude that whether a legal question was settled or unsettled at the time of trial, it is enough that an error be ‘plain’ at the time of appellate consideration . . . . The contrary judgment of the Court of Appeals is reversed, and the case is  remanded for further proceedings consistent with this opinion.”

Johnson v. Williams
— U.S. —-, 133 S. Ct. 1088 (2013)
Sixth Amendment claim was subject to review
pursuant to AEDPA, rather than de novo

The defendant and two co-defendants discussed committing a robbery. As they were driving around the Long Beach, California area, they stopped at a liquor store, and while the defendant waited in the getaway car, her friends stole money from the cash register and fatally shot the store’s owner. The defendant then drove one of her friends away, and the other fled on foot. The defendant avoided capture for five years but was ultimately apprehended and charged with first-degree murder. During deliberations, the jury foreman sent a note to the judge stating that one of the jurors intended to “disregard the law.” After jurors were questioned by the trial judge and the attorneys, the judge dismissed the juror and replaced him with an alternate. The jury ultimately convicted the defendant. On appeal, she argued that dismissing the juror violated both the Sixth Amendment and the California Penal Code, but did not clearly distinguish between state and federal grounds. The conviction was affirmed on direct appeal and state post-conviction proceedings. The defendant then filed a federal habeas petition under §2254, which was denied. However, reviewing the claim de novo, the Ninth Circuit reversed, holding that the questioning and dismissal of the juror violated the Sixth Amendment and that the state courts had not adjudicated the issue on its merits. The Supreme Court granted certiorari and reversed, holding that “the federal claim at issue here (a Sixth Amendment jury trial claim) must be presumed to have been adjudicated on the merits by the California courts, that this presumption was not adequately rebutted, that the restrictive standard of review set out in § 2254(d)(2) consequently applies, and that underthat standard respondent is not entitled to habeas relief.” The Court noted that the defendant, in her state proceedings, “treated her state and federal claimsas interchangeable, and it is hardly surprising that the state courts did so as well. After the California Court of Appeal rendered its decision, [the defendant] neither petitioned that court for rehearing nor argued in the subsequent state and federal proceedings that the state court had failed to adjudicate her Sixth Amendment claim on the merits. The possibility that the California Court of Appeal had simply overlooked [her] Sixth Amendment claim apparently did not occur to anyone until that issue was raised by two judges during the oral argument in the Ninth Circuit. [The defendant] presumably knows her case better than anyone else, and the fact that she does not appear to have thought that there was an oversight makes such a mistake most improbable. We think it exceedingly unlikely that the California Court of Appeal overlooked [her] federal claim, and the Ninth Circuit’s judgment to the contrary is reversed.

Published By Joaquin & Duncan, L.L.C.;
A Law Firm of Federal Sentencing Attorneys

We would like to thank our friends Joaquin & Duncan, L.L.C for sharing this information with us.