Vol. 14, Nos. 47 & 48
Covering Cases Published in the Advance Sheets through Nov. 26, 2007

Sentencing/Guidelines Issues

Rule 12.3 and the Public Authority Defense

Pushing Miranda to its Extremes

Supervised Release: Blanket Prohibition on Consumption of Alcohol Found Improper

U.S. v. Pauley, No. 07-4270 (4th Cir. Dec. 28, 2007) (Judge Hamilton)

This is an important decision because it contains the first detailed analysis by a Circuit court of the impact of the Supreme Court’s recent rulings in Gall v. U.S. and Kimbrough v. U.S. in the context of a significant downward departure. It is doubly significant because it is from the ultra-conservative Fourth Circuit which, prior to this decision, rarely approved any below-the-Guidelines sentences in its post-Booker jurisprudence - and especially not in a child pornography case.

For more than 30 years, Larry Pauley was a respected art teacher at two high schools in West Virginia. During the 2002-2003 school year, Pauley was approached by a female eighth-grade student (the victim) who asked whether he would be interested in paying her money if she took nude photographs of herself. Pauley agreed to the victim's proposal; and the victim, using a Polaroid camera she owned, took nude photographs of herself and sold them to Pauley.

Subsequently, the same student approached Pauley twice more with similar proposals; and, on both occasions, he again paid the student money for additional photographs taken by his student. The following year, the student against approached Pauley with a different proposition. This time she asked Pauley if he was interested in paying the victim and her friend, who was also a student at the same school, to take nude photographs of themselves together.

Pauley told the victim that he was willing to pay both the victim and her friend for such photographs. Pauley then gave the student his Polaroid camera and some film, which she put in her school locker.

Later that day, the victim's friend reported to school personnel that Pauley was willing to pay her and the victim money to take nude photographs of themselves together. An investigation by school personnel ensued, during which the victim's locker was searched and the camera and film were discovered.

Based on that discovery, the police obtained a search warrant for Pauley’s home and they seized 25 photographs that the victim had taken of herself. Seventeen of the photographs taken were determined to contain images of child pornography; but none included the face of the victim.

On August 10, 2004, the government filed a one-count information charging Pauley with possessing photographs that contained images of child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B). Subsequently, Pauley pled guilty pursuant to a written agreement with the government.

Pauley’s Guideline sentencing range was 78-97 months; but the district court (Judge Copenhaver of the S.D.W.Va.) decided to impose a sentence of 42 months, after concluding that a downward departure was supported by the following facts as they related to the sentencing factors set forth in 18 U.S.C. § 3553(a): (1) in buying the nude photographs each time, Pauley initially was approached by the victim herself; (2) fewer than two dozen pornographic photographs were taken with the victim's Polaroid camera; (3) the victim's face did not appear in any of the photographs; (4) Pauley displayed deep remorse; (5) besides the criminal conduct at issue, Pauley was a model citizen and a good father and teacher; (6) as a result of his conviction, Pauley lost his teaching certificate and his state pension; (7) Pauley agreed to a lifetime of supervised release; (8) no other child pornography was found in Pauley's house; and (9) the counseling Pauley would receive during incarceration would rehabilitate him, allow him to lead a productive life upon release, and make further crimes by Pauley extremely unlikely.

The Government appealed the sentence reduction; but, relying largely on the principles established in Gall, the Fourth Circuit affirmed the reduced sentence. Because the Court’s ruling contains the first detailed Circuit Court analysis of the impact of Gall on a district court’s departure from the Guidelines sentencing range, we have set forth below a number of significant passages from the Court’s decision:

“Our appellate review of the reasonableness of a sentence focuses on whether the sentencing court abused its discretion in imposing the chosen sentence. This abuse of discretion standard of review involves two steps, the first examines the sentence for significant procedural errors, the second looks at the substance of the sentence. The Court in Gall explained that ‘significant’ procedural errors include errors such as ‘failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence-including an explanation for any deviation from the Guidelines range.’ Gall, 2007 WL 4292116, at *7.

“Substantive reasonableness review entails taking into account the ‘totality of the circumstances, including the extent of any variance from the Guidelines range.’ If the sentence is within the Guidelines range, we, as an appellate court, may, but are not required to, presume that the sentence is reasonable. However, if the sentence is outside the Guidelines range, we are prohibited from applying a presumption of unreasonableness. To hold otherwise would fatally undermine the Court's holding in Booker. In reviewing the substantive reasonableness of the sentence, we may consider ‘the extent of the deviation,’ but we ‘must give due deference to the district court's decision that the § 3553(a) factors, on a whole, justify the extent of the variance.’ Gall, 2007 WL 4292116, at *7. Even if we would have reached a different sentencing result on our own, this fact alone is ‘insufficient to justify reversal of the district court.’ . . .

“The district court's rationale for varying downward thirty-six months from the low-end of Pauley's Guidelines range is reasonable and premised on the factors set forth in § 3553(a). In its ruling, the district court emphasized that certain facts related to the nature and circumstances of Pauley's offense were mitigating. . . .

“In its consideration of the § 3553(a) factors, the district court correctly found in the exercise of its discretion that other facts warranted a sentence lower than that recommended by the Guidelines range. The district court found that Pauley warranted a lower sentence because he was deeply remorseful and, besides the criminal conduct at issue, he was a good father and teacher. Such considerations were appropriate because they are directly tied to § 3553(a)(1)'s directive that the court consider the history and characteristics of the defendant. 18 U.S.C. § 3553(a)(1). The district court also found that Pauley warranted a lower sentence because he lost his teaching certificate and his state pension as a result of his conduct. Consideration of these facts is consistent with § 3553(a)'s directive that the sentence reflect the need for ‘just punishment,’ id. § 3553(a)(2)(A), and ‘adequate deterrence,’ id. § 3553(a)(2)(B).

“The district court further explained that a lower sentence would allow Pauley to be rehabilitated through the counseling he will receive during incarceration, and the court noted that a lifetime of supervised release would reduce the risk of Pauley becoming a repeat offender and would deter him from future criminal conduct. These are also valid considerations under § 3553(a). In sum, considering all of the factors that the district court viewed as mitigating in their totality, we hold that the thirty-six month downward variance was supported by the justifications necessary to uphold the sentence.”

U.S. v. Betts, No. 06-50205 (9th Cir. Dec. 14, 2007) (Judge Kleinfeld)

Marcus Betts worked for TransUnion LLC, one of the three major credit reporting agencies. He was charged with conspiring with his codefendants to take bribes from people who wanted to improve their credit scores. Ultimately, Betts pled guilty to a charge of conspiracy under 18 U.S.C., and he was sentenced to three years probation and a three year term of supervised release, with a number of special conditions.

One of the conditions that Betts challenged on appeal was a requirement that he abstain from using alcohol during his entire term of supervised release. Betts argued that the prohibition on the consumption of the use of alcohol had nothing to do with the nature or circumstances of his crime or his own history and characteristics. Thus, he argued that the special condition was improper because it did not bear a reasonable relationship to rehabilitating the offender, protecting the public, or providing adequate deterrence.

The Ninth Circuit agreed and vacated Betts’ sentence. First, it agreed that “there is nothing in the record to suggest that the [sentencing] judge thought there was any past abuse of alcohol, or any relationship between alcohol and Betts's crime.” In fact, the Court noted that the imposition of that special condition arose out of an ongoing “policy disagreement between the federal defender's office [FDO] and the court, and a misallocation of the burden of proof.”

The policy disagreement stemmed from the practice of the FDO of advising its clients not to answer probation officers' questions about alcohol or other drug use. In response to that practice, the judges in the C.D.Cal. have been ordering all defendants to undergo drug tests and abstain from alcohol use while on probation. The Court put a quick end to the efforts of the district courts to force a change in policy of the FDOs. It wrote:

“The bureaucratic reason for the sentence, to set court policy against federal defender office policy in order to compel a change in federal defenders’ office policy, is prohibited in the context of sentencing by the requirement in 18 U.S.C. § 3553(a)(1) that the court must consider ‘the history and characteristics of the defendant.’ Sentencing must, under section 3553, be individualized. Congress can make non individualized policies, but not judges. We squarely rejected the proposition that the defendant has the burden to come forward with information in a decision that came down after the sentencing in this case, U.S. v. Weber, [451 F.3d 552 (9th Cir. June 20, 2008] ([penile plethysmograph devices as conditions]). We held in Weber that the government bears the burden to demonstrate that the discretionary supervised release condition is appropriate for the particular case. The defendant does not bear the burden to demonstrate that a discretionary condition is unnecessary.”

The Court also noted that, in Weber, it had identified 18 U.S.C. § 3583 as the "principal statute governing a district court's ability to impose conditions” After examining § 3583 and the statutes referenced therein, the Weber court concluded that "conditions of supervised release 'are permissible only if they are reasonably related to the goal of deterrence, protection of the public, or rehabilitation of the offender' " and "involve 'no greater deprivation of liberty than is reasonably necessary for the purposes' of supervised release." The Weber court also explained that this determination must be an "individualized" one based on "the nature and circumstances of the offense and the history and characteristics of the defendant."

For all those reasons, the Court firmly stated in the instant case that “the requirement of individualization leaves no room for blanket policies applicable without individualized consideration regarding discretionary conditions.”

As a matter of interest, Judge Kleinfeld also explained that one of the dangers arising from the indiscriminate imposition of special conditions during supervised release is the denial of liberties that have become part of our culture. Thus he wrote:

“Moderate consumption of alcohol does not rise to the dignity of our sacred liberties, such as freedom of speech, but the freedom to drink a beer while sitting in a recliner and watching a football game is nevertheless a liberty people have, and it is probably exercised by more people than the liberty to publish a political opinion. Liberties can be taken away during supervised release to deter crime, protect the public, and provide correctional treatment, but that is not why it was taken away in this case. . . .

“This is not to say that there is anything wrong generally with supervised release conditions requiring abstention from alcohol. Many people commit crimes when they drink too much, and such conditions are often necessary to protect the public and provide correctional treatment. We have upheld abstention conditions where there is some indication in the record of a problem of abuse. Frequently the need for abstention is obvious from the defendant’s criminal history, and the court does not need any admissions from the defendant, because of such past offenses as drunk driving. But the decision has to be individualized, not a matter of policy applicable without regard to the individual defendant.”

In Brief

Court Holds That Sentence of 1,772 Months (147 Years) Is Not “Grossly Disproportionate” Under the Eighth Amendment: U.S. v. Watkins, No. 05-4551 (6th Cir. Dec. 14, 2007) - In this case, the Sixth Circuit rejected the defendant’s contention that his sentence of 1,772 months (147 years) was constitutionally invalid under the Eighth Amendment as cruel and unusual punishment. The defendant, Gary Watkins, a first time offender, was convicted of participating in a string of six bank robberies during which no guns were fired and no one was injured. Watkins argued that his sentence was a grossly disproportionate punishment when compared to the crimes for which he was convicted.

The Court disagreed, stating: “Although Watkins is correct in arguing that the Eighth Amendment places an outer limit on criminal penalties that are grossly disproportionate to the offense, this is not such a case. . . . In light of the numerosity and seriousness of the offenses, the comparable sentences imposed by this circuit in similar circumstances, and the requirement that sentences for § 924(c) firearms convictions run consecutively to all other sentences, Watkins’s sentence is not grossly disproportionate to [his] offenses.”

We wonder what the Court would consider to be “grossly disproportionate”? 250 years? 500 years? More??

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