Articles Posted in Child Pornography

On December 15^th the D.C. Circuit overturned for plain procedural error a severe sentence in another of those child pornography sting operation cases that appear with some frequency in this jurisdiction.

In a split opinion that is somewhat remarkable for its composition (Senior Circuit Judge Edwards and Circuit Judge Henderson comprising the majority with Senior Circuit Judge Sentelle dissenting) the Circuit reversed the conviction of James Brown, a defendant with a seeming penchant for sexual relations with underage females, including his daughter and at least one granddaughter. The Court found that the district court had plainly erred in sentencing Mr. Brown to a 144-month prison term, which was 47 months in excess of a jointly-requested low end of the Guidelines range and 23 months above the high end. In finding procedural error, the court sidestepped the appellant’s alternative claim of substantive unreasonableness. In particular, the panel found that the lower court’s explanation for an above-Guidelines sentence was inadequate under United States v. Akhigbe, 642 F.3d 1078, 1085-86 (D.C. Cir. 2011)).

Writing for the majority, Judge Edwards found that the district court had plainly failed to provide adequate in-court and written explanations for imposing a sentence that neither the prosecution nor the defendant had sought. Describing the Trial Judge’s in-court characterization of Brown’s conduct “spare and unparticularized,” the panel pointed out that the lower court’s explanation for the above-Guidelines sentence to have been a “‘mere recitation of . . . § 3553(a) factor[s] without application to the defendant being sentenced [which] does not demonstrate reasoned decisionmaking or provide an adequate basis for appellate review.’” (slip op. at 12) (quoting Akhigbe, 642 F.3d at 1086). Nor did the trial judge’s “unparticularized references to “actual abuse of children’ and ‘predatory conduct’ provide [any] basis for suggesting why the conduct described was more harmful or egregious than that accounted for in the Guidelines calculation, let alone why that conduct merited a sentence 23 months in excess of the applicable Guidelines range.” (slip op. at 12-13). In a similar vein, the Court found “unenlightening” the trial judge’s comment that “the combination of behaviors to which Brown pled is ‘not conduct we normally get around here,’” for that comment failed to explain why Brow’s behavior “was more egregious or harmful than that accounted for by the applicable Guidelines calculation.” (Id. at 3-14).

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