Add one more to an interesting line of Seventh Circuit cases that overturn sentences because of a district judge’s apparent reliance on facts that are not in the record, and that seem instead to be based on stereotypes about certain types of offenders. (For earlier cases, see here and here.) In the new case, United States v. Halliday (No. 10-2337), the district judge imposed a 240-month sentence for child pornography possession and receipt — 30 months longer than the government requested — because “this Court has seen no remorse, no acceptance; belief that this is just ordinary conduct, victimless crimes.”
The trouble is that nothing in the record supported the judge’s perception of a “belief that this is just ordinary conduct, victimless crime.” No doubt, there are many child pornography defendants who have this view, or who say things at sentencing suggesting such a view. But, as far as one can tell, Halliday was not one of them, and it is indeed troubling that the district judge seemed to be sentencing him on the basis of generic perceptions about his class of offenders.
But did this really rise to the level of plain error, as the Seventh Circuit held?
There was ample support for the district judge’s statement that there was “no remorse, no acceptance,” and that seems like the main consideration that drove the sentence; the “victimless crime” point seems more a subsidiary one.
It’s hard not to think that the extreme length of the sentence — 20 years for a no-contact possession/receipt crime — figured into the Seventh Circuit’s thinking. Indeed, the court spent a good bit of space discussing the widespread criticism of the child pornography guideline and the unusually high proportion of below-guidelines sentences issued in these sorts of cases (19-21). (Harsh though it was, Halliday’s sentence was right in the middle of his guidelines range.) The Seventh Circuit suggestively observed, “While we have rejected the argument that district courts are required to sentence below the Guidelines range in cases involving U.S.S.G. § 2G2.2, we have noted that such criticism has been ‘gaining traction.'” (21)
Whether appellate courts should regard within-range § 2G2.2 sentences as presumptively unreasonable is an interesting question on many levels. The Seventh Circuit is apparently not yet quite ready to reach such a conclusion, but perhaps within-range § 2G2.2 sentences are now getting a little closer scrutiny in other respects in light of the substantive concerns with these sentences.
In addition to the sentencing issues, Halliday also objected on double jeopardy grounds to his conviction for both receipt and possession. The Ninth and Third Circuits have held that possession is a lesser-included offense of receipt because receiving an item necessarily involves taking possession of it. Although these holdings are in tension (but not direct conflict) with some Seventh Circuit decisions, the Halliday court seemed favorably inclined to the approach of the other circuits (12-13). However, in light of some other difficulties with the defendant’s double jeopardy claim, the panel ultimately declined to rule on whether possession is a lesser-included offense of receipt.