Sentencing, Stereotypes, Porn, and Plain Error

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.

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One Response to “Sentencing, Stereotypes, Porn, and Plain Error”

  1. Brian Fahl says:

    First, I wonder if plain error really should have applied here. This seems more like an instance where Halliday is taking exception to the Judge’s pronouncement of sentence. Under Fed. R. Crim. P. 51(a), exceptions to rulings or orders are unnecessary.

    Assuming that procedural error applies, I think an important factor here is that the Court decided an issue of procedural error under Gall and not an issue of substantive reasonableness. I would argue that a procedural error under Gall is always plain.

    Under Gall’s two-step review process, a procedural error requires remand because a sentence cannot be substantively reasonable if it is procedurally infirm. It is not the place of an appellate court to decide what a sentencing court might have done if it had fully and accurately considered the relevant sentencing factors. A sentence that contains a procedural error is essentially unreviewable.

    It seems to follow then that, under Gall, a procedural error at sentencing necessarily affects the fairness, integrity, and public reputation of the proceeding.