*1 culpability. points also lack Vidiksis $97,545 disparity penalty between the $5,000 was assessed and the that the
he company estate was assessed.9
real above, explained responsibility
As any behalf of obviate agent does not responsibility. culpabili-
lessor’s Vidiksis’s was not existence of
ty despite reduced requirements agent. on behalf degree of
The statute states The ERP
culpability should a factor.
clearly Simply takes it into consideration. the man- disagrees
because Vidiksis agency which the
ner has chosen take
it into make consideration does not interpretation arbitrary
agency’s capri-
cious.
CONCLUSION reasons, foregoing
Because
decisions rendered EAB on at hand
issues are AFFIRMED. America,
UNITED STATES of
Plaintiff-Appellant, IREY, Defendant-Appellee.
William
No. 08-10997.
United Appeals, States Court of
Eleventh Circuit.
July $5,000 company real estate penalty ability pay. was assessed a based on *5 DUBINA, Judge, and
Before
Chief
TJOFLAT, EDMONDSON, BIRCH,
BARKETT,
CARNES,
HULL,
BLACK,
PRYOR,
MARCUS, WILSON,
MARTIN
HILL,*
Judges.
Circuit
CARNES,
Judge:
Circuit
appeals
“The federal courts of
review
and set aside those
federal sentences
” Rita v.
United
find ‘unreasonable.’
States,
338, 341,
551 U.S.
S.Ct.
(2007)
Unit-
(citing
The sentence is unreason- other primarily, solely, able but not because of sexually forms of disordered behavior with Irey’s the nature and extent of acts).” William prostitutes (e.g., sadomasochistic criminal stream steady conduct. of That on years, despite went for 15 the fact criminal flowing this through cases Court that he was time. married the entire brings many examples us man’s inhu- Irey in Starting began spending man, manity depressingly and we see every out two weeks month in China on large against number of crimes children. On the he business. weekends when was sexual Irey But the crimes that committed indulge there he would himself more against some of the most vulnerable chil- “sexually disordered behavior” travel- apart. dren set him world He ing to Asian brothels different countries. sodomized, sexually raped, tortured Early on he went to a brothel in Cambodia fifty girls, more as young or little some as that featured underage girls and discover- years age, many four occasions over enjoyed having ed that he chil- sex with five-year period. a four- or also script- He a period years, dren. Over of four or five cast, in, ed, produced, starred and distrib- he numerous brothels where “visited uted worldwide most graphic some underage had Irey, children.” who is 5’10” disturbing child pornography that has pounds, weighs was his forties up ever turned on the internet. at the time. All sexually of the children he Irey’s The horrific nature of crimes re- girls; abused underage were none of them adjusted sulted offense level that sixteen, than older and some of them an advisory guidelines would led to four, five, years were six old. range of life imprisonment. Because the government charged Irey’s had all of went had those brothels and sex count, in just crimes one statutory “many times,” many the children years maximum was 30 that had it, he recounted during trips his numerous guidelines effect of reducing range to world, part and as time went court, as well. The district how- on he became “more more obsessed ever, did not impose that sentence. In- returning and was Asia more and more *7 stead, deciding after that pedophilia was sexually often” to paid abuse children. He impaired Irey’s “illness” that had voli- $1,500 the up Cambodian brothels to tion, pronouncing Irey and that himself child, each the use of he typical- and would victim, all was a like of the little children ly buy or two three the at of children a he sexually long, had violated for so the busy time. he When was too in on China district court deviated from downward the get away business to visits weekend to 30-year guidelines range imposed and a Cambodia, Irey pay would sometimes to years. sentence of duty Our to 17-1/2 of young girls some to him flown set requires aside unreasonable sentences sexually so that he could abuse when them that setwe aside this one. Irey’s he found the time. sexual violation of August the children did not end until of I. The Criminal Conduct law country 2006 when enforcement in this Irey William a seemingly had insatiable finally caught up with him. appetite. sexual as a psychiatrist Or he The little Cambodian children whom it, phrase Irey later retained would Irey “abjectly impover- victimized were Orlando, “highly sexualized.” While and, noted, ished” as the district court business, he Irey where lived and had his “perhaps of indulged appetite by his sexual most vulnerable consorting with a prostitutes weekly society.” on As basis. the world’s We know of the some body points vaginal which her area.” because Irey did to them of what details comput- ‘Front,’ his agents writing seized show enforcement Some of them “the law that he had memorialized ‘Back,’ ‘Brown,’ door,’ and found ers ‘Back ‘9 Yo Fuck’ on photo- he had done part of what least writing prepubescent girls’ bodies. viewing later for his and videos graphs vaginal anal pointing has arrows and computer hard one of his On pleasure. images Irey are of “en- areas.” Other 1,200 images more than there were drives and gaged vaginal anal intercourse children, and sexually abusing the Irey of girls” are up Asian who “tied prepubescent not include obscene that number does grey tape.” and with black and duct bound of the children images Irey produced images Irey also “of with nude There are picture. him in the Differen- do not show trophies.” children prepubescent posing many images so tiating children little Irey’s children defilement difficult, over of period taken a rape, sodomy, and humilia- stop did Irey sexually victimized but we know them. tion. He also tortured There underage girls.1 fifty at least different “Irey inserting images plastic Irey photographs pro- videos dildos, stick, green/yellow glow cockroach- he some details of how violat- duced reveal cavity candy vaginal pre- es and There are the children.2 ed debased pubescent images Asian females.” Some “Irey on with sever- images showing a bed inserting tube “Irey plastic show into per- children prepubescent al female Asian vagina Asian prepubescent female. performs him he forming oral on while sex images plastic Several of the show images depict on Other oral sex them.” into containing crawling tube cockroaches vaginal in anal inter- “Irey engaged image these vagina children.” One prepubescent with a Asian female course “performing vaginal shows him intercourse on Yo Fuck’ marked her with the words ‘9 girl” “[i]mbedded on her on painted prepubescent “an arrow is body,” and 1,200 images Irey abusing who more than them. of little children were 1. The number literally Irey object Irey’s photographs him- victims is countless. did not those or count, apparently keep although did not representation self showed about 50 bought he children sexu- he did recall that of his victims or that there were "over 50” times,” usually ally "many many abuse two or setting findings, its victims. out time, five-year three at a over a four- court stated about circum- 1,200 period. than ob- Some of more quarrel with of the crime: "I cannot stances preserve Irey produced to his images scene description that.” Ms. Hawkins’ Based many chil- perverse exploits show the faces of finding, considering the un- AUSA’s dren, images framed and but the were not disputed representations at the sentence hear- count, *8 a head and with the focused to aid probability ing, the of well as an under- as passage years appearances of the chil- the of count, least 50" we will use 50 or "at as undoubtedly changed they grew as older dren victims. number of sexually being abused. while descriptions Irey's 2. All of conduct con- of the "[tjhere Report The states Presentence paragraph tained and next in the in this victims,” forty Irey did were and not over quoted Report. text from the Presentence are object admitted to that statement but instead accuracy Irey not contest the of these did sentencing hearing During the it was true. Instead, descriptions. he wrote the district Attorney Cynthia United States Assistant presentence in- court that: "I have read Hawkins, case, prosecuted who described vestigation report 11-26-07. I have dated doing rep- Irey's In so she criminal conduct. things graphically spelled done which are of his the court that the number resented to adopted court all of out in it.” The district She child victims was "over 50.” also report in the the factual statements contained photographs the faces of showed of findings as of the court. taken from the "about 50” the child victims of image pics on the all some capitals] phrase: [in trade new never saw before. I Girl, Deep trade this ‘Big Bug Cock Push Into 9 Yo for site access.” ” She Hurt in Pane.’ agents Irey’s searched house on 13, 2006, Irey August computers. If felt about and seized six guilt purchasing they hard helpless On drive found a girls subjecting little them to collection of 1,200 Irey more than images sexually of pain degradation, images he re- violating girls. young agents In sent corded do show it. some themof 1,200 plus images those actually he can National smiling be seen he in- Missing for Exploited Center Chil- flicts the sexual abuse. dren, which in provided turn an extensive Irey did not use the massive of amount report about where the images had been pornography produced only child he for his separate seen before. More than 100 law prurient perusal; keep own he did not it to agencies reported enforcement to the Na- copies images himself. He used of the he they tional Center previously had gain made to access to collections of up turned images some of those of Irey’s purveyors other pornography. of child underage sexual abuse of girls their Irey gave copies pictures them investigations of child pornography. The produced videos he had showing his sexual graphic images Irey produced had and dis- violation of and humiliation Cam- little already tributed were widely known as the bodian children in return their waiver “pink series,” infamous wall so named be- of the access fee to the collections cause the pink walls that could be seen already had on Through their websites. in the background of some the photos type operators of trade the of those and videos. images The series included websites Irey’s were able to add graphic some of the worst child sexual abuse the collections, images their which led to agents And, had ever seen. as the Assis- images those being spread around the tant United Attorney States pointed out at Irey world. in turn was able to save some hearing: the sentence pictures of these money expanding while his collection children, five, some of whom “four pornography, child he and was able to also six old ... will forever out there card, minimize the use of his credit which online.” As record of their abuse con- made it easier for him to hide what he was circulate, tinues to “[t]hey will be victim- doing from his wife. over again.” ized and over Capture II. The and Conviction aIn one-count indictment filed on De- 13, 2006, Irey cember charged Irey’s use of the internet led to his 2251(c). violating 18 U.S.C. The indict- capture. Federal agents intercepted and alleged ment that he knowingly “did em- Irey traced messages email that he had use, ploy, induce, entice, persuade, illegal sent to an offering website child coerce engage sexually minors to explic- emails, pornography. one those States, it conduct outside the United which sent in mid-January he the purpose producing depictions visual asked operator: the website you “do re- *9 conduct, of such and transporting such vi- before, member me from could I trade depictions sual by any United States you my some pics days of latest for 30 means, including by computer and mail.” your good site. Let me a know address to you send some samples.” Irey About a month was into custody taken on Decem- later, agents intercepted another email ber 2006. He was released on an from Irey, which you stated: “do want unsecured bond conditioned on his being exploitation of involving the sexual facility “for treat- was one psychiatric in a housed sexually explicit of by production related to the minors health issues mental ment of at that Added to that printed remained or matter. charges.” He visual current thirteen home for at least four levels under facility near his offense level were base 2G2.1(b)(l) § because the offense involved months. 12; of two levels age children under the July hearing on change plea of At a 2G2.1(b)(2)(A) § the offense under because count of guilty to one Irey pleaded of the actual commission sexual involved 2251(c). asked § When violating 18 U.S.C. 2G2.1(b)(3) acts; § levels under two done, Irey he had tell the court what pornography; of child distribution overseas, nu- visited replied: “Went to— 2G2.1(b)(4) § because it four levels under underage had where brothels merous sadistic con- portraying involved material them, had sex photographed children and duct, adjusted offense level producing an my laptop them, them on and had with 44. levels were of Then two “subtotal” He States.” I entered the United when § a of group- under 3D1.4 as result added period over a of happened that it added victims.4 Those ing multiple because of being time 2006. the last years,3 four adjusted produced a combined state- additions government’s with the Irey agreed that were de- had admitted offense level of 46.5 From hearing that he at the ment 3El.l(a) § had for ac- overseas he two levels under that while ducted agents minors, responsibility knew were additional ceptance children he with sex that, 3El.l(b) images timely § notifica- pornographic under produced had level images those transported plead guilty. Subtracting then intent to and had tion of country. produced into this from the 46 back those three levels final offense level of 43. Proceedings Sentencing III. The prior no convictions Irey Because had and Sentence was I. Even .history category his criminal A. The Calculation level of 43 category an offense Range Guidelines imprison- advisory guidelines produces an range of life. The statute under ment began the cal- Report Presentence however, convicted, carries which he was Irey’s guidelines culation of statutory years. maximum of 30 See 18 under level of 32 range with a base offense 2251(c). result, the guide- As a 2G2.1(a), the offense U.S.C. because U.S.S.G. (the group- two change plea added rather than Irey have been Although at the stated ceiling regardless of the ing fixed at 5 levels children hearing abuse of the that his sexual offenses), given which would years, he told number of period of four occurred over adjusted offense level of 49 period a combined over a Ted Shaw that it occurred Dr. level of 46. and a final offense years. five Report pointed out charged in the 5. The Presentence Although only was one count n.6, upward depar- indictment, sepa- "[a]n under 2G2.1 cmt. guidelines each consider may because the offense pur- ture be warranted separate "group” for as a rate victim upward minors.” No more than ten U.S.S.G. involved poses offense-level calculation. case, requested by government 2G2.1(d)(1). departure the PSR did not In this court, probably applied be- groups were beyond because two proceed two made difference it would not have put ad- cause enough the defendant’s combined adjusted level and criminal offense final offense since justed level at 46 and his offense guidelines im- history worked out to score maximum level avail- which is the level up- range without an prisonment of life even guidelines. Had the PSR con- able under children, departure. ward fifty levels would all five sidered *10 (30 Scott, became See States v. 426 F.3d “range” lines 360 months United Cir.2005). (11th 1327, 1330 years); spread top was no and there —the range bottom of the were the same. See anticipation argument In of that 5Gl.l(a) (“Where U.S.S.G. the statutori- volitional,” purely Irey’s actions were “not ly maximum sentence is less authorized government argued Irey that not “has guide- applicable than the minimum of the shown his mental condition is outside statutorily maxi- heartland of range, line authorized similar cases” and cited our in support two of of that decisions guideline mum sentence be the sen- shall Caro, proposition. See States v. tence.”). United (11th Cir.2002) F.3d objected party Neither to the calculation (“[M]ost people collect a who sizeable guidelines range. In sentencing his of pornography amount child are in some- memorandum, Irey’s “Mr. counsel stated: it.”); addicted way collecting to United object Irey does not the Probation Offi- Miller, (11th States cer’s advisory guideline calculations and Cir.1998) (“Nor poor impulse would control departure does not seek a downward from purveyor be unusual or of [for collector guideline range described in the PSR.” pornography], regardless child of whether did, however, ask for a be- sentence impulse it stemmed from an control disor- guidelines range years. low the of 30 The An impulse der. ... control disorder is requires statute a minimum sentence of 15 atypical not or that it separates so unusual 2251(c). years. Irey’s See 18 U.S.C. defendants.”). this defendant from other argued memorandum that “[a] Acknowledging Irey may have “ra- prison, sentence of 15-20 followed against tionalized his crimes children by a term of supervised substantial re- perceive failing the harm he was inflict- imposed. lease” ing,” argued should be it that “is not so uncommon take this as to case out of the heartland.” government The filed a mem- regard to the possibility Irey, arguing orandum case “[i]f this may pedophile, “experience[d] self- atypical, it is of aggravating, because not deceptive thought processes,” govern- factors,” mitigating, it urged and the court emphasized horribly ment that he “has impose equal guide- sentence to the sexually abused numerous children over a lines range statutory maximum 30 years.” period government’s The sen- years. government told the court that tencing memorandum concluded argu- give great weight “should findings “any ing that variance under 18 U.S.C. Congress ... that departures be should would be unreasonable because extremely rare in child sex crime cases” nothing there unusual about the nature because of the seriousness of those crimes. or circumstances of this offense or the argued It specifically that any variance personal defendant’s characteristics.” based on Irey’s “diminished aber- capacity, behavior, family rant responsi- ties and The Reports Psychiatrist B. bilities” result Psychologist would an unreasonable sentence. government also pointed In connection with sentencing defense precedent establishing guidelines that a counsel hired two experts the field where, may appropriate even psychology psychiatry, fur- he government’s words, in the the defendant’s their reports nished to the court. One “psychological evaluation found that [had] Berlin, reports Fred from Dr. who he a significant was not risk to children or general is board-certified in fo- both likely to children in future.” psychiatry. Although molest rensic he did *11 stated, however, that He also report decision.” hearing, his testify at the [Irey’s] fault that he “[although it is not Report, a Presentence in the mentioned disorder, responsibility to is his to defense coun- has the attached of it was copy Dr. Berlin something about it.” Report, Presentence do objections sel’s Shaw, Irey professional needed thought Dr. who did that it was discussed out that pointed but he also hearing. treatment testify at treatment, past, he without “[e]ven a Irey that “has reported Dr. Berlin to from sexual able refrain had been as heterosexual known disorder psychiatric with children within United contact experiences “he which means pedophilia,” States.” prepubescent to attraction strong a sexual than ordinarily are less girls who that he had girls; report Berlin’s stated Dr. Dr. stated Berlin thirteen-years-of-age.” Irey suggest to that was found no evidence relating intimate- capable flawed,” Irey that was “characterlog[icall]y and conclud- woman, he found that ly to an adult “not anti-social or generally that he was ed cravings sexual intense Irey “experienced makeup,” psychological his psychopathic Irey was as well.” children for female generally has was he “a man who nor having admitted to “highly sexualized” Instead, he a sense of conscience.” lacked sexually disor- forms of “engaged other Irey simply had often been thought (e.g. sado- prostitutes behavior dered “readily the extent appreciate unable acts), having ... viewed masochistic Dr. with the children. improprieties” his bestiality on the Inter- involving images Irey had “a malicious denied that Berlin Nonetheless, Dr. Berlin asserted net.” well-being girls for the disregard my knowledge and best of that “to the Instead, professional in his question.” unwilling belief, coerced he has never Irey genuine have a af- “Mr. did opinion, their will.”6 against person youngsters for those and concern fection he was actually thought at that time” “a opinion that sexu- gave Dr. Berlin his sexually he girls the little was helping does not pedophilia as al disorder such that, except abusing.7 Dr. Berlin’s view is consequence of a volitional develop as a facts, in Cambodia ing the child brothels undisputed visited that state- view of the times,” though many he knew “many even astounding. We it inconceivable find ment is wrong, and that it was girls were minors impoverished Cambo- believes that Dr. Berlin late, my addiction adding sex children, to[o] "but it was among the vul- most dian who Later in the world, in full of me.” was now control willingly people in the submit- nerable letter, stop Irey this [had] said: "I wanted sexually tape and being duct ted to bound years, could not. insanity at least 15 but I anally by a orally, vaginally, and penetrated prostitutes, I sneaking pick up male, was out to I having well as to 200-pound adult developed leading I had sticks, dildos, a double life. was including glow objects, various this terrible dark side.” vaginas, pushed into their and cockroaches words, Irey's “Hurt in Pane.” they, fully theory Irey while had not Dr. Berlin’s explanation Irey only plausible wrongfulness what he was appreciated the forthcoming ap- with Dr. Berlin was less than Cambodia doing the little children in he had done to those Irey’s details of what about the parently was too much of stretch many “many argue times” over at least children in his counsel. Counsel did defense four-year period. “Irey has been sentencing memorandum that diagnosed pedophile, and had limited as a supporting the ability control the behavior disagree with Irey probably would himself argued, He never fully of conviction.” offense opinion that he had Dr. Berlin’s however, what he had not realized wrongfulness of his conduct. appreciated the appreciate wrong failed to doing was to the district court letter he wrote In a criminal con- fully wrongfulness of his sentencing, Irey admitted to hav- week before *12 spent for the fact that had edged, though, he four or five that the children “suffer years raping, sodomizing, sexually and tor- the most and are victims.” turing some of most the vulnerable chil- Dr. report Irey’s Shaw’s noted escalat- world, Irey in dren is “an otherwise ing sexual over the ten preceding interest decent man.” years, which “could described as a ‘sex- Shaw, Dr. Ted psychologist, was also addiction,’ many ual with behaviors and defense, by retained and he submitted obsessive which frequent fixation included “psychosexual report” evaluation on be- masturbation, anonymous sex with prosti- Irey. half of Dr. When Shaw evaluated tutes and the eventual use of in brothels Irey August 23, Irey on was at the Irey Cambodia.” He described as “sexual- Lifestream in Behavioral Center Lees- ly obsessed for at least the years,” last ten Florida, burg, “on conditional release from and opinion “Irey’s stated his that paraphi- jail.” undergoing He was treatment behaviors, lias clearly drove his of spite alcohol problems abuse and sexual addic- being an moral responsible otherwise and Shaw, tion. According to Dr. a review in individual, upon many in- people, whom May Irey 2007 indicated that making “was cluding family, employees, clients and de- appropriate progress,” although his wife pended.” and children personal “refused attend counseling” family part as sessions. Under one of the risk assessments that Dr. applied, Irey’s Shaw score “places him Irey admitted to Dr. Shaw that he had in the risk category Medium-Low for sex- prostitutes used country in this and in ually one, re-offending.” Another doing so disease, had contracted a venereal Minnesota Screening Sex Offender Tool- passed along which he to his wife. Irey Revised, in a placed resulted score that “experimented had also with bisexuality” Irey in the “Moderate Risk Range.” More “enjoyed had consensual bondage” said, specifically, Dr. five-year, Shaw “the with Irey adult females. “described a lack ten-year, fifteen-year recidivism rates women,” interest in well-endowed telling development individuals research Dr. Shaw that he “when married his wife study 14%, Irey’s 12%, with Mr. score are breasts,” she was thin and had small but Overall, and 19%.” he reported, dy- “the physique changed “[h]er has over the factors, namic and suggest static years.” moder- Irey admitted that he had visited ate to low child moderate risk of a new charge,” brothels in past Cambodia “for the did, which years.” however, five “can through He be reduced lie to continued Dr. Shaw about some treatment supervision details of and informed upon his sexual Irey abuse of children.8 acknowl- his release.” memorandum, duct —not in Irey his acknowledge, or knew and later would brief, hearing, panel at the photographs his many or in he made showed his girls en banc importantly, younger brief. More the district were than twelve and some Irey years young age. never found were as fully Irey had not as four also conduct, appreciated wrongfulness told only Dr. Shaw he would of his have oral appeared girls younger sex with the who the conduct was than purely However, age. twelve a photograph volitional and part instead was substantial Irey having vaginal him pedophilia. due to made shows his inter- young girl, course with a “[Embedded girls told Dr. Shaw that some image capitals] he phrase: ‘Big [in all is the teens, Girl, had early sex with "were their Bug Deep Cock Push Into 9 Yo She Hurt ” fact, youngest being about twelve." in Pane.’ They are ready. by fueled obsessive Hearing The Sentence
C.
thinking
masturbating
hearing,
began the sentence
The court
themselves.
sex acts
January
held on
which was
that it had reviewed
noting
questioned
The court
Dr. Shaw about
*13
memoranda,
and
presentence report,
mean,
asking him:
it an
pedophilia,
“I
is
witness was
report. The first
Dr. Shaw’s
mean,
you
illness? I
how would
describe
Irey
that
gave
opinion
He
his
Dr. Shaw.
professional?” Af-
that as a mental health
problem with sexual
long-standing
“a
has
Dr.
noting that
Berlin was on the
ter
ad-
obsession,”
like sexual
“something
and
it
purposes
that defined
of
committee
diction,”
Psychiatric
As-
and American
TR, Dr.
the DSM-IV
Shaw testified:
sociation,
Man-
Diagnostic and Statistical
at it.
my
I’ll take
shot
It is a disorder
(4th
rev.
ed. text
ual Mental Disorders
of
behavior,
you
interest and
and
of sexual
TR)
2000) (DSM-IV
terms, “obsessive-
diagnosis
only the
can have the
with
disorder,
full-
type
not
compulsive
fascinated,
you
interest.
So
could be
disorder, but with the sexual behav-
blown
sexually attracted to children and never
So
being
prominent
the most
feature.”
ior
it,
if
you
act on
and—but
it troubled
or
tell,
enough
not
he could
there was
far as
any problems
you, you
would
caused
any person-
diagnose Irey
with
evidence
disorder,
diagnosable
that
still be
with
Irey
Dr.
that
is
ality disorder.
Shaw said
being
engag-
that
and
is
attracted to
explained
psychopathy”
and
“very low
behaviors,
behaviors,
ing in
sexual
with
encapsulated area where
that “he has this
prepubescent children.
cheating,
lying,
he was
he was
where
clearly
it
a
disor-
well-recognized
So is
laws; but outside
violating
where he was
der,
thought
I
a
and
Dr. Berlin did
that,
appears to be—to have
he was—
job
saying
good
that it’s not a disor-
law-abiding citizen.”
been a
der that someone chooses.
It’s some-
Irey’s
sexually abusing
risk
As for
you
thing
you
is within
and
have
that:
again, Dr. Shaw testified
children
tendency towards
some
it.
essentially in
medium low to
“He’s
frankly
quite sadly,
I think
And
categories,
moderate
which
medium or
risk
child
availability
images, particu-
likely.”
a
is below threshold of
is—which
Internet,
larly
epi-
fueled an
on
has
might
risk
be further
reduced
kind of
pedophilia
demic of
that was
hesi-
use of certain
but he was
drugs,
people
in the
probably
background,
require
that the court
tant to recommend
they
not have even known that
might
their
and the
given all of
side effects
them
it, and
across
suffered from
then come
they’re
always
not
useful.” He
fact “that
nonetheless,
But
it
images.
these
older
going
to be
also noted
disorder. So it’s
disorder
treatable
released,
going
if he’s
and he’s
“when and
origins.
that has different
naturally
experienced
to have
reduction
Irey talks
how the
And Mr.
about
in sex
and a reduction
testosterone
him in his
disorder manifested itself for
the risk
up
Dr. Shaw summed
drive.”
very young'
with a
being provided
situation:
—or
asking
very young prostitutes without
said,
overall,
be,
I find
as I
So
him to
initially;
he found
for them
then
risk,
risk, a
moderate
low-moderate
repelled but then attracted
himself first
have—has
psychopathy.
He does
low
them,
that’s
of natural
interests,
that sort
he
deviant interests. Those
part of it that’s dif-
biological disorder
reducing
working
himself has been
moral
issues.
al-
from the
and ethical
likely
somewhat reduced
ferent
they
person,
ing,
urge,
if
had
even if
have an
for another
So
situation, they may
in the
been
same
same way
compulsive
dessert eaters
stayed repulsed
been repulsed
have
can choose
not eat dessert.
and,
know,
said,
you
-just
not—
They
strug-
different levels of
I’m
again
ever
“Don’t
do that
gling, and
are aids to that:
there
Good
interested;”
spi-
him into a
but that led
treatment,
supervision, good
replacing
sexually.
in children
ral of interest
So
healthy
those needs with
needs. A lot
way
that’s the
that it’s manifested itself
is helping people
treatment
under-
here.
origin
stand
their disorder and
then remarked that
to,
all,
then
them
teaching
first of
*14
knowing
of not
what
“people accuse me
danger signs,
aware of
risks to
illness,
talking
say
I’m
about
I
when
it’s
relapsing,
replac-
at the
time
same
maybe
why
asking
I
That’s
I’m
and
don’t.
ing
way
they
meeting
that
were
you.” The court continued:
behavior,
needs met with the disordered
guess
question is,
I
from a
And
healthy
meet them in
and
ways;
that’s
standpoint
criminology,
person
is a
something
taught.
can
people
People
who acts out
a result of this condition
Irey,
like Mr.
bright,
who’s
who has
acting totally of rational free
or is
will
business,
in
he
been successful
can cer-
person acting
that
out as a result of
tainly
techniques
learn the
that we teach
something that
inis
essence an illness
prevent
responsible
to
himself for
—be
point
that he at that
has no
over?
control
preventing a reoffense.
you
saying?
Do
what I’m
understand
It’s—I think
like
say,
because we
Dr. Shaw answered:
words,
“You can’t
other
be cured”—in
do,
I
Your Honor.
I think that the
the best long-term treatment
is to be
pedophilia
underlying
fact that
is not an
alert to the problem and to—that’s not a
sanity
for competency
element
or
is—it
Cures, you
cure.
can forget about it.
I,
an Axis
treatable disorder. Those of
go
again
Just
be around kids
and don’t
us
have
in
who
been
the field—I’ve been
That,
worry about it.
we can’t do.
actually
in the sex
field
offender
since
are,
know,
you
But there
thousands of
1976; and
were pioneers
there
in the
molesters,
pedophiles and child
differ-
me, long
field before
me.
before
We
ent,
there,
belief,
in my
out
who aren’t
treating
been
pedophilia
for dec-
who
in
re-offending,
recovery
are
and
ades.
just
doing
fine. The new treatments
problem
It is—I think that the
that a
are,
think, very
we
I
that
use
effective.
lay
in
people
distinguishing
lot of
have is
cross-examination,
On
Dr. Shaw con-
disordered,
people
are
between
who
ser-
Irey
firmed for the record that
was “a
disordered,
iously
curability
versus
pedophile with a sexual
in
interest
children
treatability. Pedophilia
very
treata-
younger
prepubescent
than
children.”
ble,
many
and there
in
pedophiles
are
assessment,
for Irey’s
As
he
risk
conceded
community
doing just
who are
fine
study it
relied
was not confined to
managing
their behavior.
pedophiles but also included other sex of-
know,
I’m
you
As
sure
probationers,
acknowledged
fenders. Dr. Shaw also
that
probationers, are now subjected
U.S.
photo-
he had not looked at
they
an annual
about
polygraph
whether
graphs
Irey’s
victims and
not know
did
following
proba-
are
the rules of their
many
they
or
how
victims there were. When
re-offending.
tioner whether
are
Pedophiles
capable
surprise
of not
if it
him to know
re-offend-
asked
would
chil-
make this world what we all envision
“over 50
“to
Irey
sexually molested
had
be-
A
dren,”
Irey’s
it wouldn’t
be.”
friend
testified
responded
he
could
that he had become
Irey
help
“did admit
in
cause
used his contacts China
Irey had
was re-
more obsessed and
more
in
family of
man’s wife China.
out the
often.”
more and more
turning to Asia
years of
during
added that
his 32
He also
City
York
he had
law enforcement New
only people
Dr. Shaw the
than
Other
people
Billy Irey is
seen “a lot of bad
for, or testified
statements
who submitted
people.” Irey’s
one of those
brother
at,
hearing
not
so as charac-
the sentence
did
Irey,
had
about how
when a senior
Irey. Although
testified
ter witnesses
in fam-
willing
fully participate
his coat to
high
school
had loaned
been
him, all
immedi-
Irey’s
victim,
ily therapy
of his
typical
an accident
which was
on his
did make statements
family
ate
kindness,”
if
acts of
and how
“random
(wife,
daughter,
video
behalf either
need,
you
could count on
someone
(two
sons)
son)
at the
person
other
him.
In his
video state-
hearing.
short
praise
No one was more effusive in his
ment,
youngest son told about his
Irey’s
nephew.
than his
He recounted
building a
and dirt bike
father
clubhouse
*15
get
uncle had
him a com-
helped
how his
statement,
In her short
track.
video
puter
college, had
him talk
for
listened to
16)
fa-
Irey’s
(age
described her
daughter
oth-
aspirations,
helped
about his
and had
“has
“loving”
ther
and said that he
years.
that
proclaimed
ers over the
He
respectful,
to
taught
strong,
me how
be
way of
Irey
touching people’s
“had a
lives
honorable,
and the
can
on and
loyal,
go
list
before,”
way
in a
that I’ve never seen
and
on.”
the
in
“bring[ing]
every single
out
best
of 25
Irey’s
In
video statement
wife
her
is,
he
in his
person
Irey
that
meets.”
years
loving
him as “a
and won-
described
view,
spirited
giv-
most
“the most
and the
“mind-
and father” who is
derful husband
of a
ing person”
just
and “overall is
one
people’s feelings.”
ful
She said
of other
He even said that: “I like to think
kind.”
Club,
Rotary
that he was a member
the
Bill,
created
that when God
Uncle
He took
YMCA,
Masons,
Way,
the
United
said,
really
He
going
a
back and
‘I’m
step
theater,
Shriners,
and a chari-
local
”
like this one.’
to
He was
ty called “Give Kids World.”
evidence, de-
At the conclusion of the
he
good
so
and kind that
had even rescued
to
argued
counsel
that a sentence
fense
Indeed,
stray
in a
she
dog.
and taken
statutory
would
years
maximum of 30
“very
proclaimed that
she
been
had
necessary
Irey
than
Mr.
in
“greater
for
part
to have been
of Bill’s life
blessed
light
mitigation
present-
that’s been
many
many years.
taught
so
He’s
me so
that he was not
watching
After
her video state-
ed.” He assured
court
things.”
ment,
“I under-
gravity
the district court stated:
to minimize
of the acts
trying
“the
family
Irey
good
Mr.
has been a
Irey
stand that
but ar-
charged,”
with which Mr.
family support.”
man and has
gued
compartmentalized
that
were “a
being
his whole
that is a result of
area of
24)
that
(age
son
testified
Irey’s oldest
argued
He
that Dr.
pedophilia.”
his
taught
his
had
him
much about
father
“so
testimony
report
and Dr. Berlin’s
Shaw’s
hero, my
“my
life
love” and called him
and
pedo-
that “the
of a
established
behavior
20)
star,
(age
father.” His
son
our
middle
is,
volitional,
phile
totally
that
is not
Irey
that
had
him “to stick
taught
testified
degree
disease
in some
dictated
a lot of times
up
guy
for the little
because
had
will,”
argued
Irey
also
that
Irey
things
and
itself.” He
nobody else
that
did
that,
“lived,
than
I
people
other
this disease and this
can’t undo
but I can
addiction,
exemplary
an
life.” Counsel cit-
willing
learn from
and I’m
to learn.”
decisions,
ed
two from this
three
Court
then
in
argued
The AUSA
favor of the
Circuit,
Eighth
and one from the
which
advisory guidelines range sentence of 30
guidelines
affirmed sentences below
years.
Irey
court
She reminded the
range
involving
cases
defendants con-
being prosecuted
being
pedo-
“is not
distributing
pornography
victed of
child
phile;
being prosecuted for
he’s
the acts
over the internet.9
argued
he committed.” She
that: “As
told
if Irey
Counsel
the court that
were
car,
does
alcoholic
not have
drive
guidelines
30-year
sentenced
range
put
pedophile doesn’t have to
themselves
he
years
sentence would be 81
old when he
Cambodia,
a brothel
which this defen-
got
sentence,
out.10 Instead of that
coun-
years
years
years,
dant did for
sel
the court
impose
asked
one of “be-
Your Honor.”
tween 15 and 20
here with
up
The AUSA reminded the district court
lifetime supervised release.” Counsel as-
description
Irey’s
20-year
conduct in
serted that
15- or
Report
“writing
“would make him 66
Presentence
included:
got
when he
out,
bodies,
if he served
filth
inserting objects
the entire sentence.”11
on children’s
them, binding
into
up
tying
them and
them
After defense counsel made his argu-
up, treating
them
posing
as tro-
ment,
asked if
wanted to
them —
phies,
having
engaging
several of them
say
remarks,
anything.
Irey apol-
brief
him
acts with
other
children at
ogized
government
to “the
agents that
time,
the same
[and] this is
run-of-the-
get
my
have had to
involved
horrible
*16
mill
pornography
child
if
deeds,”
...
there is such
office,”
attorney’s
to “the federal
court,
a thing.” She
that this
pro-
“to
stressed
is a
the children that I have
case,
duction
years
harmed over the
and “the defendant clearly
last several
of go-
Cambodia,”
ing
on;
had
family,
parts
two different
of his life going
his
and to
“my
one,
employees,
star,
writer,
that
but in
pretty
I’ve
much hurt
this
he was the
director, and,
them.” He also
end,
said: “I’ve hurt a lot
person
who
months,
year
The decisions
years
cited were United
v.
States
sentence in 26
2
and
and
McBride,
(11th Cir.2007),
released,
years
fendant.” She other fac- to look at the needed victimization, and and consider the offense an basis order tors on individualized message we send to argued that “[t]he for the appropriate an sentence determine would do this has to be consid- people who out that the defen- case. pointed ered.” She illness, importance
Because of the of the court’s because I think other than the findings explanation, and we set Irey, acts of Mr. there’s no indication them out in full: engaged that he has other sort of thing
The first I need to do is consider criminal conduct represent- or conduct the nature and circumstances of the of- ing poor character. fense, I quarrel cannot with Ms. Also, in terms of the characteristics of description Hawkins’ of that. The con- defendant, just I think begin- we’re duct here was horrific. The victims ning to learn what pedophilia is and how were perhaps numerous and the most to deal with I you it. think if look at the society. vulnerable of the world’s ISo reports of the mental people health here don’t think a,ny question there’s literature, and into the which I have dealing we’re with here with offense done, Mr. Irey’s acts that him bring that rises to very top terms of its today, here I think say, it’s safe to were seriousness and its effect on other hu- purely volitional. I think they were beings. man due in part substantial to a recognized young These children were victims illness. And while it does not excuse his never, may
who never overcome their conduct and he will still be held account- course, recognize, abuse. I that Mr. it, able for I think it inappro- would be Irey family and his and friends are also priate ignore that fact. here; society victims large ais I also think appropriate it’s to credit because, indicated, victim Dr. Shaw opinion profes- the mental health every development new in human history, sionals who good there seems to come indicate that Mr. it; bad with and with all good pursuing treatment and doing ap- so Internet, perhaps one of the bad fea- and, parently successfully in the view of tures of is that it possible has made the mental professionals, health is treat- what Dr. Shaw epidemic describes as an able and has a low risk of recidivism. And, of child pornography. unfortu- course, Of all of that is somewhat nately, system we here the court wit- academic because gets the time he it; ness that and have to deal with out prison, he’ll likely be most at an government, our in an effort to deal with age where unlikely, recidivism would be it, imposed has penalties, criminal —has just from a physiological standpoint. very harsh sentences for conduct like Mr. Irey obviously very has a loving this. family, I know proud he’s of his inSo terms of the characteristics of family and deserves whatever credit he offense, itself, the seriousness of it should take for having produced these the long-standing, long-term engage- *18 people who have today come here to certainly ment mitigate does not speak for him. IAnd know it was diffi- any leniency. favor of cult for family, but I think your that But next I need to look at the history support important lot, is says not and characteristics of the defendant. your about family, but about Mr. accounts, By all Mr. has been a Irey himself. good husband and father for his wife Another aspect of the defendant’s good children and a friend to his character, to, I as have alluded friends and a good person to his commu- course, not nity. thefts, think, his character but The lies and I his individ- re- characteristics, ferred to ual Ms. Hawkins age. were essen- is his As I indi- tially part cated, of his effort to up cover his here, even the minimum sentence hand, in light I On the other guess an old man. going he’s to be man, crimes, an old but he will I think a that makes me seriousness of sen- gets man when he certainly be an older mandatory tence above the minimum is think, that’s, I prison; out of called for. into account.
factor to take
that,
all
it’s the
having
judg-
So
said
of the statute
aspects
There are other
defendant,
ment of the Court
subjective in nature.
essentially are
Irey, is committed to the custo-
William
course, adequate deterrence to crimi-
Of
dy of the Bureau of Prisons to be im-
mean, a
nal conduct. I
serious
prisoned for a term of 210 months.
to
others from
hopefully going
deter
Upon
imprisonment,
release from
Mr.
affairs,
although
conducting similar
Irey, you’ll
supervised
on
placed
re-
an illness like
dealing
when we’re
with
mandatory
lease for a term of life. The
this,
rationally
I’m not sure that
drug testing requirements of the Violent
But, nevertheless,
follows.
deterrence
imposed.
Crime Control Act are
While
consideration, and a
appropriate
release,
supervised
you
comply
must
keeping
is in
with the seri-
stiff sentence
adopted by
with the standard conditions
ousness of this offense.
this court.
public
from
protecting
As far as
addition,
going
require you
I’m
defendant, for
further conduct of this
participate
pro-
a substance abuse
indicated, I think that
the reasons I’ve
your probation
gram and to follow
offi-
sentence,
30-year
against
militates
regard.
in that
You
cer’s instructions
that he
age, given
his
the fact
given
participate
must also
a mental health
now,
recognizes
from
apparently
every-
program specializing in sex offender
seen,
thing
recognizes
I’ve
he
condi-
your probation
treatment and follow
offi-
him to commit these
tion that has led
regard
cer’s
in that
as well.
instructions
his life and
put
acts and to
himself and
register,
appropriate,
You must
family’s
in the order that it is.
his
life
any
registration
with
state offender
toward rehabili-
step
He’s taken the first
agency
cooperate
your proba-
appears
tation and
to be amenable
complying
respect
tion officer with
also, according to the
treatment and
with that directive.
professionals,
health
is of low
mental
impose
I’ll
the standard terms con-
I
think soci-
risk of recidivism. So don’t
is,
control,
cerning risk
no direct
him,
ety
protection
further
from
needs
without
contact with minors under 18
beyond
statutory minimum
at least
approval
your probation
the written
sentence.
officer, prohibition
possessing,
sub-
cases, my
in these
happens
As often
to,
scribing
viewing any
maga-
video or
human
I am a fallible
judgment —and
zines,
depicting
otherwise
chil-
literature
necessarily
I
being. So what
do is
sexually explicit
nude or
dren
right.
just
I
do the best I can under the
positions.
possess
You shall not
or use
my
It comes down to
circumstances.
computer
with access to
online
promotes respect
of what
for the
view
approval
your
service without written
just punishment. And
provides
law and
*19
probation officer.
here,
indicated,
30-year
I think that
Also,
going
impose
Tm
to
search
sentence,
given
personal
factors
to a search
requirement,
you
submit
than
upon,
greater
I have touched
is
residence, place of busi-
statutory
your person,
necessary
accomplish
any
your
area under
con-
ness or
other
objectives.
at a
and in a
trol
reasonable time
rea-
the minimum limit.”
reache[d]
United
any
manner
1223,
(11th
sonable
based
reasonable
Irey,
States v.
suspicion by your probation officer of Cir.2009) (Hill, J.,
vacated,
concurring),
violating
contraband or evidence
these
(11th Cir.2009) (en banc).
You must cooperate with the collec- of the Sentence tion of DNA. I’m going impose not a fíne. You appealed, The United States contending ordered, however, pay special that in view of the facts and circumstances $100, assessment of which shall be due unreasonably light, sentence was
immediately. amounting to an abuse of discretion. A you It’s ordered that shall forfeit to panel of this disagreed Court and affirmed the United States those assets identified the sentence. Id. After voting to rehear your Plea Agreement subject that are banc, the case en parties we directed the to forfeiture. argue to brief and this issue: “Is the sen- indicated, As imposed Court has tence imposed this case unreasonable applicable sentence below guideline thereby an abuse of the district court’s sentence for the reasons indicated. sentencing discretion?” objection The defendant no any had Standard, A. Scope, sentence,
aspect of the
including the 210-
Importance
(17/é-year)
Appellate
month
imprisonment.
term of
States,
On behalf of the United
Review
AUSA
objected to the downward variance of 150
1. The Pre-Booker Era
(12^ years)
months
as unreasonable
Our review
aof
sentence that is chal-
“based on the
factors adduced
this rec-
lenged on
grounds
substantive
is deferen-
ord, particularly
long-
the seriousness and
tial but still important,
history
as the
term nature of the offense.” She charac-
substantive review of federal
in-
sentences
terized the
being
variance as
“almost half.”
dicates. Before the Sentencing Reform
The court responded that the sentence was
Act was
prac-
enacted
there was
“more
percent
guideline,
like 60
tically no appellate review of federal sen-
half.”
tences, except to
ensure that
did not
Actually, the sentence of 210 months
stray outside of
statutory
minimum
amounts
percent
to 58
advisory
and maximum.
long
So
as sentencing
guidelines
months,
sentence of 360
or a
judges stayed
statutory
within the
bound-
downward
42 percent
variance of
from the
aries, they had unbridled discretion to ar-
guidelines
But,
course,
sentence.
rive at
they pleased.
sentence
See
court could not sentence below the statuto-
States,
Dorszynski
v. United
418 U.S.
ry
years
minimum of
in any
event.
431-32,
3042, 3047,
S.Ct
L.Ed.2d 855
that,
light of
it is
say
also accurate to
(1974) (“[OJnce it is determined that a
within
statutorily prescribed
range of
sentence is within the limitations set forth
(a
years
15 to 30
spread
of 15
or 180
in the statute under which it
imposed,
months), the court imposed a
sentence
appellate
end.”);
review is at an
United
percent
was 83
maximum
from the
Tucker,
443, 447,
States v.
only 17
404 U.S.
percent above the minimum. As
(1972)
(“[A]
it,
Judge
put
Hill
S.Ct.
himself or herself de- form Act of whose primary purpose judge on the he gets depends fendant or was to channel district courts’ sentencing Frankel, gets.” Marvin E. Jail Sen- she disparity discretion and reduce in sentenc- Times, 15,1978, at Reform, tence N.Y. Jan. ing. Sentencing See Reform Act of reforms, proposed E21. He a number of (codified 98-473, Pub.L. No. 98 Stat. 1987 some of which were similar to what would §§ amended 18 U.S.C. 3551-3586 sentencing guidelines system. become the (1988) (1988)); §§ and 28 U.S.C. 991-998 Frankel, Marvin Criminal Sentences: See States, v. United Mistretta 488 U.S. (1972). Law Without Order 113-14 One of 364-69, 647, 651-53, S.Ct. L.Ed.2d key Judge proposals Frankel’s was that (1989) (discussing background to the subject federal sentences be to at least a Sentencing guide- Reform Act and the appellate review. degree limited See id. lines). Act, which became effective on at 75-85. The standard he recommended 1, 1987, November created the Sentencing discretion, 82-84, was abuse of see id. at gave responsibility Commission and it the which he in these terms: described develop system sentencing guide- understood, Correctly the “discretion” of lines. judicial system in our officers is not guidelines binding, were arbitrary fiat. It is an blank check required and district courts were state law, authority, weigh within the imposing particular reasons sentence. appraise (lawfully diverse factors know- 3553(b)-(c). factors) 18 U.S.C. A court could im- a responsible able and make judgment, undoubtedly pose applicable a sentence outside the with a measure finality varying according guidelines range only of latitude and if it found exis- scope to the nature and of the discretion tence of an cir- aggravating mitigating But “discretionary” kind, conferred. does not cumstance “of a a degree, or to “unappealable.” may mean Discretion adequately taken into consideration abused, discretionary decisions Sentencing in formulating Commission may be reversed for abuse. 3553(b)(1). guidelines.” making Id. finding, such a court could goal system, Id. at 84. The of the new guidelines consider themselves explained, “[s]entencing Frankel [that] policy and the statements and official com- just. would be more Like cases would alike,” Sentencing mentaries of be treated Commission. “[t]he tend to because noted, legal principles— Supreme most fundamental of our Id. As the Court later *21 1182 rarely
departures depart on this basis were avail- The district court’s decision to cases, guidelines from the was reviewed for able because most as a matter “[i]n in law, three-step process. abuse of discretion will adequate- the Commission States, Koon v. account, See United 518 U.S. ly taken all relevant factors into 98-100, 2035, 2047-48, 135 legally departure permissi- and no will be (1996). First, L.Ed.2d 392 the court of Booker, ble.” v. United States 543 U.S. appeals deferentially reviewed the district 220, 234, 738, 750, 160 L.Ed.2d S.Ct. court’s determination of whether the facts (2005). of the case it took outside the “heartland” Restraints on the exercise discretion applicable of the guideline. United States by through district courts are enforced (11th Hoffer, 129 F.3d Cir. review, appellate Sentencing and the Re- 1997). A case was outside the heartland provided form Act of 1984 for it. only unusual, if something there was either Act, § U.S.C. Under the about the defendant or circumstances (1) appealed ground could be on the that: crime, surrounding the that warranted a (2) law; imposed it was in violation of the different sentence. See United States v. it imposed was as a result of an incorrect (11th Miller, 1281, 1284 Cir.1998). (3) application guidelines; of the the term by That compar determination was made fíne, imprisonment, supervised or re- ing the facts of the case to the facts of greater lease was than the maximum or falling other cases within the heartland of than less the minimum established guidelines. Id. step As second (4) guidelines range; or imposed reviewing departure decisions the court of an offense for which there is no appeals determined for itself whether the guideline “plainly and was unreasonable.” departure by factor used the district court 3742(a)-(b). §Id. “has categorically proscribed, been is en Departures guidelines from the range couraged, encouraged but taken into con were reviewed under the third of the stat- applicable sideration within the guideline, utorily grounds appeal, listed discouraged, see id. at or not addressed the [Sen 3742(a)(3), (b)(3), § resulting tencing] and the sen- Hoffer, Commission.” 129 F.3d at tence was vacated if the 1201. In the appellate step appeals court third court reviewed with determined it was deference the district “unreasonable” finding court’s light of the the factor on which factors to be considered departure was based did exist. Id. imposing § a sentence under the district court’s stated reasons for the In 2003 Congress amended the sentenc- Booker, 261,125 sentence. See 543 U.S. at ing statute provide for closer review of (quoting pre-2003 S.Ct. version guidelines. sentences that were outside the 3742(e)(3) (1994 ed.)). § of 18 U.S.C. In Under the amendments a sentence could review, conducting appeals its the court of if departure vacated from the accepted the findings district court’s of guidelines range was based on a factor erroneous, fact clearly unless were (1) objectives that: did not advance the which was giving decided after (2) due 3553(a)(2); § set forth regard to that opportunity judge court’s (3) 3552(b); § was not authorized under the credibility of witnesses. 18 U.S.C. “justified was not facts the case.” 3742(e) (1994 ed.). reviewing 3742(e)(3)(B); 108-21, 18 U.S.C. Pub.L. gave also “due 401(d)(1), deference” to the district 117 Stat. 670. The court of application court’s guidelines appeals made each of those determinations facts. Id. 3742(e); de novo. Id. see also United *22 5H1.1, 1205, §§ Pressley, prison. 1209 n. tive to Id. 5H1.4. The States Cir.2003). (11th The 2003 amendments guidelines provide that also charitable con- va- specified that a sentence must be also tributions and a defendant’s mental and departed cated if it “to an unreasonable generally ap- emotional condition are not light degree” guidelines range, from the propriate grounds departure. Id. 3553(a) § of the district factors and 5H1.11, §§ 5H1.3. imposing the court’s stated reasons for 3742(e)(3)(C). § Id.
particular sentence.
2.
Era
The Booker
outside-the-guide-
that an
The result was
Then came the
Booker decision
if
lines sentence could be vacated
it was
Supreme
In it the
Court held the sentenc-
if
impermissible
based on an
factor or
ing statute unconstitutional insofar as the
A
degree
departure
was unreasonable.
guidelines
mandatory
were
and to the ex-
correctly calculated
sentence within a
upper
tent that
allowed the
limits of
however,
range,
essentially
guidelines
depend
the sentence to
on facts that had
long
as the district court
unreviewable
by plea
guilty
not been established
or
3553(a)
§
considered the
factors and ex-
proven
jury beyond
to a
a reasonable
3553(c).
§
plained
reasoning.
its
See id.
Booker,
doubt.
543 U.S.
restricted even
The 2003 amendments
striking
Instead of
down the en-
ability
court to
further
guidelines system,
salvaged
tire
the Court
depart
guidelines
from the
downward
by making
guidelines
much of it
advi-
involving
against
cases
sex crimes
chil-
sory
mandatory.
rather than
Id. at
type
dren.
In that
of case a court could
salvage
see also United States
(“I
ring) must conclude that the
has left
Court
(8th Cir.2009) (Colloton, J.,
467
concur-
specifics
appellate
of how
courts are to
Gall,
(after
ring)
“one searches in vain for a
review,
conduct substantive reasonableness
principled basis on which to conduct a consis-
unclear.”).
charitably speaking,
appellate
tent and coherent
review for reason-
guidelines
the sentence
involved issues related to the
government appealed
The
offenses.”).
solely
the Fourth Circuit reversed
be-
for crack cocaine
The Su-
case,
that a
on preme
opinion
cause of its view
variance based
Court’s
in that
howev-
er,
ratio
disagreement
crack/powder
with the
also contains number of observations
guidelines
per
in the
was
se unreasonable.
application.
example,
For
broader
re-
Supreme
granted
Id. After the
Court
discussed “the discrete
Court
institutional
view,
government argued against
strengths”
sentencing
courts and the
at 101-
ground.
variance on
same
Id.
Commission,
Sentencing
and how those
at
It
128 S.Ct.
570-74.
asserted
strengths
different
affect the amount of
guidelines
usually
while the
advi-
respect
vary
due
court’s decision to
from
sory,
crack/powder
the 100 to 1
ratio
guidelines range. Kimbrough,
guidelines
exception
were
because Con-
U.S. at
from the crack-cocaine Guidelines based on
policy disagreement
a
with those Guide-
Supreme
Since the
Court’s Booker
lines”).
it
“pellucidly
decision
has been
clear that
the familiar abuse-of-discretion standard of
Kimbrough
a spe-
decision involved
now applies
appellate
review
review of
part
guidelines,
cific
the one involv-
Gall,
sentencing decisions.”
ing
peculiar
552 U.S. at
crack/powder disparity,
46,
594;
at
Pugh,
which the
128 S.Ct.
see also
515
Sentencing Commission itself
consistently
(explaining
F.3d at 1191
that the
emphatically
Supreme
had
and
criti-
at
goals
teachings
cized as
odds with the
Court’s
“leave no doubt that an
behind
3553(a).
Kimbrough,
appellate
may
See
at
court
still overturn a
552 U.S.
sub
111,
576;
sentence,
stantively
128 S.Ct. at
Pugh,
see also
515
unreasonable
albeit
F.3d at 1189 n. 7 (“Kimbrough primarily
only
examining
through
prism
after
it
discretion,
balancing proper
solidly
and that
factors is
appellate
abuse of
estab
of
That
extinguished”).
has not been
in Supreme
precedent
review
lished
Court
range
a
of choice
standard “allows
See,
familiar
e.g., Piper
our circuit law.
Aircraft
court,
as that choice
long
the district
so
235, 257,
Reyno, 454
Co. v.
U.S.
judg-
does not constitute a clear error
(1981) (“The
266,
“A district court abuses its dis
Pugh,
at
(quoting Talley,
515 F.3d
(1)
cretion when it
fails to afford consider
(quotation
515 F.3d
requires
of law to fact and
the review-
tion
an examination of the
depends
tence
“on
”
to
ing court
undertake more substantive
(quoting
‘totality of the circumstances’
scrutiny
judgment
to ensure that
is
597)).
Gall,
51,128
at
at
To
552 U.S.
S.Ct.
supported in terms of the factors identified
the extent that the district court has found
(citations omitted)).15
in the statute.”
facts,
them
accept
we
unless
At the
time
clearly erroneous.
Id.
same
performing
required
After
we can and should consider “additional
if,
analysis, we are to vacate the sentence
elicited,
salient facts that were
and uncon-
if,
only
left
we “are
with the definite
difference is
troverted.” Id. The
between
and firm conviction that the
district
contradicting
factfinding,
a
on the one
judgment
committed a clear error of
hand,
ignoring
uncontroverted facts
3553(a)
weighing
by arriving
factors
that the
court failed to mention on
that
range
at a sentence
lies outside the
important
the other. That difference is
dictated
reasonable sentences
facts
because a district court cannot write out of
Pugh,
of the case.”
1193
3553(a)
Second,
position
Judge
factors,
including
vant
the need
dissenting opinion takes is
Edmondson’s
protect
public.”);
United States v.
with the familiar abuse of dis-
(6th
inconsistent
Camiscione,
823,
591 F.3d
834
Cir.
Supreme
cretion standard that the
Court
2010) (“General deterrence is one of the
apply.
already
has
us to
As we have
told
key purposes
sentencing,
and the dis-
explained, a district court commits a clear
trict court abused its discretion when it
discretion,
judgment,
error of
abuses its
give
failed to
that matter
its proper
when it
factors
proper
considers
but weight.” (quotation and other marks omit-
unreasonably.
Piper
balances them
See
ted));
Sayad,
United States v.
589 F.3d
257,
Co.,
at
454 U.S.
102 S.Ct. at
Aircraft
(10th Cir.2009)
1110,
(“Unlike
1118
proce-
266;
1174;
Campa, 459 F.3d at
Ameritas
review,
dural reasonableness
which focuses
Ins.,
1330; Ford,
Variable
411 F.3d at
Life
permissibility
on the
relying
partic-
on a
purpose
Hampton,
F.3d
*32
3553(a)
2006)
substantively
sentence as
to consider the
fac-
(vacating
“failing
that
the district court
unreasonable
tors,
because
failing
adequately explain
... or
to
statutory
weight” to one
gave “excessive
sentence,”
proce-
the chosen
constitutes
others);
account for
factor and failed to
Ellisor,
error);
dural
United States
O’Neill-Cancel,
also Torres-Rivera v.
see
(11th Cir.2008)
1255,
(Tjoflat,
F.3d
Cir.2008)
(1st
(stating
524 F.3d
335-36
J.).
in
case no one has ever
And
this
that,
may
general,
in
abuse of discretion
that the district court committed
argued
sig-
to consider a
occur if the court “fails
sentencing.
error in
That
any procedural
calculus, if
nificant factor in the decisional
not mentioned
either
possibility was
working
factor in
improper
it relies on an
court,
in
in the district
or
their briefs
party
calculus,
if it
all the
that
or
considers
panel,
argument
or in the oral
be-
makes a serious
appropriate factors but
panel,
panel’s opinion
fore the
or in the
relative
judgment
in
as to their
error
(which
joined),
in the
Judge Tjoflat
or
en
join those circuits in reaf-
weight.”). We
instructions,
or
briefing
par-
banc
exists,
that
review
firming
substantive
us,
at oral argu-
ties
their briefs to
or
correct sentences that
part,
substantial
to
us,
anywhere
ment
or
else at all
before
weighing deci-
are based on unreasonable
Tjoflat’s
emerged
Judge
sepa-
until it
accepted
position
sions.
If we
set out
opinion.
appeal
in this
has
rate
The issue
Judge
dissenting opinion,
Edmondson’s
reasonableness,
procedural
never been
only
circuit to do so.20
we would be
substantive
reasonableness.
instead
Adequacy
B.
the Sentence
Tjoflat’s
Judge
opinion, although purport-
Findings
Explanation
ing
recognize
Irey’s
to
can-
sentence
procedural grounds,
not be vacated on
Judge Tjoflat’s separate opinion
up
procedural objections to
making
dresses
its own
criticizes the district court for not
findings
more detailed sentence
and not
the sentence as substantive ones. No
offering
explanation
a
for the sen
better
couture, however,
amount of rhetorical
can
imposed. Separate Op. Tjoflat,
it
tence
up
opinion really
cover
the fact that the
is
sentence,
J.,
Irey’s
at
1257-58
ac
complaining
procedural
unrea-
about
cording
separate opinion,
to that
is unrea
sentence, an
sonableness of the
issue that
sonable because the district
failed
is not before us.
“intelligible”
“specific” findings
make
Second,
if
even
issue were before
3553(a)(2)(A)factors,
and because
us,
required
the district court was not
weigh
it
not “explicitly”
did
those factors.
any
findings
give
make
detailed
or
a
more
criticism,
at
Id.
1257-58. About
we
thorough explanation
more
than it
In
did.
all,
things
say.
have four
First of
Supreme
upheld
Rita the
Court
the ade-
adequacy
findings
of a district court’s
quacy
“sentencing judge’s
of a
statement
procedur
a classic
explanation
issue,
Gall,
legally
al
not a
of reasons
was brief but
[which]
substantive one. See
weight
impossible;
we
reinforces the
20. Each of the circuits
have cited has
determined,
implicitly,
weight
deferential
the review.
we have
at least
that the
nature of
As
3553(a)
emphasized,
given
may
each
be reviewed
there is "a difference between
factor
fashion,
agree.
Crisp,
principled
we
deference and abdication.”
Even
difference,
though
appropriate weight given
we
"the
to each
at 1290.
If there were no
if
3553(a)]
meaningful
play,
role to
we
[§
factors cannot be calibrated
did not have
rule,”
Pugh,
would never have set aside
sentences as
slide
515 F.3d at
unreasonable,
appellate
substantively
but we have.
that does not mean
review of that
tation of
reasoning
sufficient.”
U.S.
S.Ct.
its
on each of the
the record showed
2469. It did so because
factors:
to the evidence and
judge
that the
listened
(or
[W]e cannot read the statute
our
aware of the various
arguments and was
precedent)
insisting upon
a full opin-
put
factors the defendant
forward for
in every
ion
case. The appropriateness
lesser sentence.
Id.
brevity
length,
conciseness or de-
much,
judge
say
did not
defendant the
tail,
write,
when to
what
say, depends
acknowledged
“might
the Court
he
upon
judi-
circumstances. Sometimes a
*33
more,”
it
that
have said
surmised
“[h]e
opinion
cial
responds
every argument;
must have believed that
there
was
not;
sometimes it does
sometimes a
say.”
Although
much more to
Id.
judge simply
“granted,”
writes the word
judge did not even state that he had con-
or “denied” on the face of a motion while
argument why
sidered the evidence and
or
relying upon context and the parties’
rejected
arguments
variance,
he
for a
prior arguments to make the reasons
enough
“the context and rec-
much,
clear. The law leaves
in this re-
reasoning
ord” indicated the
behind his
spect,
judge’s
own professional
359,
conclusion. Id. at
ing from a 360-month ed variance downward substan- the sentence is problem is months, to one of 240 guidelines sentence That tively unreasonable. unreasonable- percent, would have been reduction of underlying cause for ness is the variance”); major v. Abu “a United States findings Tjoflat opinion’s criticism of (4th Cir.2008) (not Ali, 210, 261 “intelligible,” for its explanation as not per variance of 40 ing that downward “cannot be rec- pronouncement “major”); a sentence of 30 is cent to sentence, and for its con- onciled” with the Burns, 577 F.3d see also United States v. the sentence light clusion that in of them (8th Cir.2009) (a 887, 888-90, 896 variance Separate Op. “inconceivable.” percent from a 360- downward J., at The reason that Tjoflat, 1256-57. one of 144 guidelines month sentence to against when viewed imprisonment “beyond dispute” months inconceivable, irreconcilable, findings is one). major fault unintelligible is not the *34 The findings but of the sentence itself. proportion Although there is no Tjoflat opinion confuses the unreasonable- major ality principle sentencing, a with an absence of ness of the sentence require significant variance does a more it, and the impossibility stated reasons for justification than a minor one—the re giving a for the sentence of reasoned basis justification quirement is that the part a lack of effort on the of the with “sufficiently to compelling support to do so. sentencing judge Gall, degree of the variance.” 552 U.S. justifica at at 597. The explaining turn of We now to task tions the district court offered for its why, even under the deferential standard major variance downward in applies, viewing that of review facts only insufficiently were not compelling light of this case in of and circumstances variance, support degree of the but 3553(a) § factors leads to the conclu- insufficiently compelling were also sion that the downward deviation sentence support any variance. imposed is district this case substantively unreasonable. in judg- The district court’s clear error apparent ment becomes when all of the
C. Substantive Unreasonableness facts and circumstances are considered statutory minimum appli- The 3553(a) light § factors. What years cable to this case is 15 and the 3553(a) sufficient, § requires is “a sentence years. advisory maximum is 30 greater necessary, not than comply but guidelines range years, top is 30 and bot- purposes with the forth in paragraph set tom. The district court deviated (2)” down- Throughout of that subsection. his (nineteen a years years, ward to sentence of separate opinion by times our 12/6 17/6 only years statutory 2]6 which is above the count), Judge Tjoflat refers minimum. The downward variance was 42 § requirement that a sentence be percent.21 considered in absolute adequate pur- Whether but not excessive for the terms, 3553(a)(2) “major” or it percentage poses parsi- is vari- out in set as “the sentencing mony ance in of legal parlance principle” parsimony “the re- Smith, J., Separate Op. Tjoflat, of quirement.” law. See United States v. 573 F.3d noted, months) already percent we have viewed in or 180 that was 83 As when statutorily permissible range only percent terms of the below the maximum and 17 years, Irey, 15 to 30 the district court chose a above the minimum. See 563 F.3d J., (a (Hill, range concurring). spread of 15 sentence within 3509, 3511, 3513, 3516, 3520, Calling statutory require- & n. too short. 3527-28, 3530, 3532, n. n. ment “the parsimony principle” is as in- that has in a It is term been used complete inaccurate as it would be to See, e.g., United States few other circuits. requirement severity call the “the princi- Carrasco-De-Jesus, (1st 589 F.3d ple.” The reason that counsel defense Cir.2009) appellant “posits that the (noting argue sentences, those who for shorter parsimony the sentence violates the cases, generally either or in specific like 3553(a)”); United of 18 principle U.S.C. “parsimony the term principle” is that Martinez-Barragan, States v. tends to slant the discussion toward short- (10th Cir.2008) (“[T]he 894, 904 er sentences emphasizing part guided court must be ‘parsimony requirements. the twin But terminolo- ‘sufficient, principle’ the sentence be gy that completely is less than —that accurate greater necessary, but not than to comply should not guide judicial be used to deci- criminal purposes’ punishment, term, sions.22 A more accurate if one is 3553(a)(2).”). expressed as needed, might princi- be “the Goldilocks ple,” because goal is to lock in a sen- problem parsimony with the termi- tence that is not too short and not too long, nology statutory command has just right purposes serve the components equal standing, two and it 3553(a).23 opinion, however, In this we ignores requirement one them. The using will avoid merely simply that a court when catchword and apply provision Congress handing stingy enough down sentence be wrote it. *35 long, to avoid one that too We turn now to the sentencing also that factors set 3553(a).24 enough § it to in generous avoid one that is out "parsimony principle” Judge Tjoflat's opinion 22. The term interprets is an ex- 24. the statu- 3553(a) tory language § ample require of what Holmes once referred to as an to the sen- word[],” tencing judge identify single "driving "inadequate by catch which could purpose,” "explain why driving and then the "very felicity, delay analysis.” its further Oli- purpose purposes.” subsumes the other Id. Holmes, ver Wendell Law in Science and Sci- 37; (“[T]he at 1239 n. see also id. at 1247-48 Law, (1899). ence in 12 Harv. L.Rev. (a)(2) purposes weighed against should not be Judge Tjoflat's separate opinion says that other; rather, each the court should [district] "[ajlthough quibbles the court with the label (a)(2) identify purpose the the drives sen- ‘parsimony principle,’ disagree it does not parsimonious tence and fashion a sentence underlying concept.” Separate Op. with the purpose.”); id. at 1249 & n. 63. Under J., Tjoflat, contrary, at 1232 n. To the approach, driving purpose that novel emphatically disagree "parsimo- we with the sentencing judge chose would run over all of ny principle” terminology concept and the purposes the other in the listed statute. it, that underlies which is that one of the two "impose The statute directs courts to a sen- 3553(a) § principles given predomi- is to be complies] purposes tence ... [that] with the nance "parsimony over the other. The term 3553(a)(2). § § set forth” in 18 U.S.C. 3553 principle” "inadequate added). is an catch word” that (emphasis The direction is that the prefer the deck we stacks would to deal comply "purposes” plural; sentence with the 3553(a)(2), result-neutral terms. § four of them are listed in "and,” they joined by conjunctive thought 23. Research reveals that this oc- has disjunctive "or.” Id. judge. curred to at least one other See United 3553(a)(2)(A)-(D). Tjoflat opinion The cites Pruitt, (10th States v. authority proposition no for that courts Cir.2007) (McConnell, J., ("The concurring) pick "driving purpose” speed should one Goldilocks, judges, factors tell like ahead and flatten the other three. high not to sentence only disagree too not to sentence approach Not do we with the low.”), vacated, Judge Tjoflat’s too 552 U.S. opinion, S.Ct. but so does the (2008). Supreme 170 L.Ed.2d explaining Court. In how 3553(a)(1) availability pornog- of child a victim the
1. Section Dr. the internet. Nor did Berlin. raphy on actually factor—it is two The first listed Irey counsel. Nor did Nor did defense a district court must factors one—that one who saw as himself. and that a court of sentencing, consider in court. victim was the district reviewing appeals must consider reasonableness, is for substantive with the district problems There are two of the of- nature and circumstances “the predator prey: re-casting court’s of the characteristics of history and the fense premise. premise legal factual and its its 3553(a)(1). the defendant.” U.S.C. factually is not with the problem “the nature and circum- large To a extent finding that the internet explicit court’s component of this stances of the offense” of child possible epidemic “has made listed consid- overlaps factor with the next disputes No one that. pornography.” eration, for the sen- which is “the need implic- with the problem Nor is the court’s tence reflect seriousness imposed—to finding availability por- that the of child offense, for the promote respect internet has caused some nography on the law, just provide punishment and to sexually by pedo- children to be abused 3553(a)(2)(A). offense,” For that id. otherwise re- philes who would reason, some our dis- postpone we will discussing pedo- strained themselves. nature and circumstances of cussion of the philia generally, Dr. Shaw testified that (a)(1) until component the offense we availability pornography on the of child (a)(2)(A) factor up take offense-related epidemic pedo- internet fueled an “has in the next section. philia probably that was kind of background, people might not have even a. The “Victim” it, known that suffered from and then Most of the district court’s reasons for images.” come across there is a these So major imposed variance it relate to the finding that some basis the record “history characteristics of the defen- to action pedophiles are excited *36 3553(a)(1)factor, § component dant” of the child on the internet. That is pornography and it is here where most of the court’s problem. not the factual in judgment leading errors to the unrea- is, instead, problem The factual with the begin sonable sentence can be found. To implicit finding that child district court’s with, Irey, who the district viewed pornography Irey, on the internet caused sodomized, fifty raped, had and tortured court, defendant before the underage girls, a victim. The as himself sexually that it abuse children. We know exactly recognize, court said that: “I not, that from no did and we know less course, Irey family that Mr. and his authority Irey an than himself. a letter here; society friends are also victims he wrote to the district court a week be- because, large is a victim as Dr. Shaw Irey fore stated that he did not sentencing, indicated ... the Internet ... has made viewing pornography start child on the possible epidemic pornogra- of child Irey begun having internet until he had phy.” Dr. Shaw never said that after 3553(a)(6) 3553(a)(6) sentencing disparity § § factor folds directs courts to con- 3553(a)(2) purposes, sider the need to avoid unwarranted sentenc- into the and that one ing disparities, purposes driving the Court instructed us that of those then becomes sentence, disparities weighed against purpose but instead that “these must be behind 3553(a) 3553(a) Kimbrough, weighed other factors.” all of the factors are to against (emphasis U.S. at add- each other in order to determine the S.Ct. ed). say proper The Court did not that sentence. girls little sex with the Cambodia.25 victim of child pornography on the internet than a defendant rapes has who an adult government throughout insisted wom- an is entitled to be considered a victim however, it chal- appeal, this is not sexually provocative images on television. any of the district lenging court’s factfind- The victims in this case are the underage ings, only characterizations, the court’s its girls, old, some as young as four fact, of law to application weight it Irey whom violated for his perverse own factors, assigned to various and the overall pleasure, filming that violation for distribu- reasonableness of the sentence it imposed. tion Suggesting worldwide. Irey, like reason, For that we will not disturb the children, those little awas victim is ab- clearly district court’s finding erroneous surd. Even defense counsel refused to pornography the existence of child defend it before us.26 Irey sexually the internet enticed abuse The district court’s view of Irey as contributing children or was a cause of his a victim permeated reasoning its and taint so, doing accept and we will instead ed its weighing factors, finding given analysis. as our (a)(1), including which is “the nature and problem The more fundamental with the circumstances of the offense and the histo Irey-the-crimi- district court’s recasting ry and characteristics the defendant.” Irey-the-victim legal premise nal as is the The nature of an would offense tend to it, suggests behind one that the criminal is morally seem less outrageous if the one like his wrongdoer, victims. who committed it were himself a victim. predator, the victimizer. The little And if the characteristics of the defendant girls in wronged, Cambodia victim, being include naturally he is more prey, the victims. The district court sympathetic than otherwise. kept separate should the two and not b. The commingled Pedophilia them in its “Illness” of thinking. Child molesters and the children who are their lines, Along these same the district occupy victims do not the same moral court insisted on describing Irey as suffer- plane position or anything resembling ing from pedophilia, the “illness” of while sexually it. A man who violates little chil- the two experts defense described dren is no more entitled to be considered a “treatable disorder.”27 The district court court, Irey In his letter During argument, stated: "I oral defense counsel many many visited these brothels questions gave times after was asked these these *37 girls that. I knew that these were answers: not 18. late, my But it was Q. to[o] sex addiction was factfinding What Irey about his that now in full control of me. awhile I supports himself was a victim? What that? After porn started to look for child on internet” Judge, A. I think that his in statement that added). (emphasis report And Dr. Berlin's regard is unfortunate I think it was in Irey any stated that: "Mr. denied sexual fan- response direct Q. to Dr. Sh— tasies of children he had before the sexual You don’t defend that statement do experiences you? in the Cambodian brothels.” A. I do not. us, During argument oral before defense quoted question exchange The first in that Irey’s counsel conceded that own statements labeled the district court's statement a fact- negated finding pornogra- a that he saw child finding, Calling Irey but it was not. a victim phy on internet that enticed him to travel characterization, finding is a not of fact. to Cambodia and have sex with children. acknowledged TR, Counsel it was "correct” that pedophilia 27. Under the DSM IV is a Irey "went to paraphilia Cambodia visited the child and an Axis I disorder. Other
brothels and then examples paraphilia first after while he started of Axis I disorders in- exhibitionism, fetishism, looking voyeurism, for it internet.” clude against halfway children around the pedo- from crimes that he suffered found because bring country him there Irey’s acts in a third world where philia: globe “Mr. say, I were today, here think it’s safe no risk from law enforcement. was little or I think were purely volitional. it in his own Irey’s self-restraint when was part recognized due substantial indulge not to his lust for best interest not excuse his And while it does illness. that his volition was not proves children held accountable for conduct and he will be any worthy weight extent impaired it, inappropriate I think it would be sentencing. fact.” ignore that During hearing, the sentence the district support The record does not Dr. a person court asked Shaw: “is who finding pedo- that because he is court’s acting out as a result of this condition acts Irey help raping, not much phile could totally rational free or is that per- will sexually torturing little sodomizing, and acting something out as a result of son children, posing trophies, them as and that is in essence an illness that he at that smiling it. The record actual- while he did has no control over?” Dr. Shaw point finding. Dr. Berlin re- ly contradicts that court’s pedophiles- refused to endorse the “Although it is not his fault that ported: Instead, theory. he can’t-much-help-it pedophilia], has the is his he disorder [of pedophi- gave expert opinion his while it,” responsibility something to do about curable, it pedo- lia is not is treatable and to do Irey’s responsibility It could not be philes many molesting can and do avoid if he lacked something pedophilia about his Dr. children. Shaw stressed “Pedo- capacity something to do volitional treatable, very are philia is and there doing it. responsible about One is community in the who many pedophiles something only ability if one has the to do just doing managing fine and their something experts agreed Both about it. that there behavior.” He later reiterated pedophilia treatable. What was pedophiles are “thousands of and child mo- pedophilia his could have done about different, lesters, there, out ... who aren’t it. He once seek treatment never re-offending, recovery who are and are pedophilia, sought treatment for his which doing just “many pedophiles fine.” The part as his “ter- of what he described “just community” doing could not be side,” during dark the four or five rible ... pedophiles fine” and the “thousands sexually abusing little chil- he was avoiding out there” could not be commis- “many many dren times.” Like most if, sion of offenses as the district court criminals, Irey stopped only got when he believed, pedophilia “illness” of ren- caught. dered the criminal acts of those who mo- that, noted, Dr. Not but as Berlin entirely lest children “not volitional.” See treatment, past, without “[e]ven Winick, generally Bruce J. Sex Offender [Irey] refrain from had been able to A Therapeutic Law in the 1990s: Juris- sexual contact with children within the Psychol. Pol’y prudence Analysis, Pub. undisputed United fact is States.” *38 (1998) (“People diagnosed & L. Irey perfectly capable that of not sex- was not children in pedophilia with do molest ually abusing children where the risk of police of officers or in other presence punishment high, detection and was which presenting high to commit his situations likelihood why consciously is he chose frotteurism, fetishism, sexual ma- transvestic 566-67. sochism, at and sexual sadism. DSM IV TR Rather, they act We this recognize finding with would as
apprehension. clear stealth, if government in an error had deception, premeditation argued not, to purpose- point to avoid detection. This is us. Since it did we will accept effort conduct, fact, ful, only, goal-directed not as this case the erroneous planned, finding action or that spontaneous pedophiles and uncontrollable when molest chil- beyond they acting dren are not in a substantially “purely that is indi- voli- action avoid.”); way tional” but instead their ability to id. 523-24 crimes are vidual’s (“There “due in diagnostic part” substantial to their nothing pedophi- in the crite- lia.28 pedophilia any para- or of the other ria for suggests diag- that that individuals
philias
That finding, which we assume correct
any
suffer from
with these disorders
nosed
case,
3553(a)(1)
for this
is relevant
affects
cognitive impairment
that
their
concerning
factor
“the nature and circum-
wrongfulness
ability
understand the
history
stances of the offense and the
or that
them irra-
their conduct
renders
characteristics of the defendant.” But the
unable to control
respect
tional
reasonably carry
assumed fact cannot
Moreover, there
noth-
their actions....
weight.
“purely
much
Not
volitional” does
the clinical
ing
suggests
literature
volitional,
not mean not
and “due in sub-
that sex offenders are unable to exercise
part”
due, period.
stantial
does not mean
self-control.”).
The district
Irey
court did not find that
not help committing
could
the crimes that
district court
to acknowl-
refused
many
he committed “many
times” over a
edge
line that both
the defense
period
years.
of four or
Perhaps
five
experts
pedophilia
drew between
and child
reason the
stopped
finding
short of
line,
argued,
the AUSA
molestation —a
Irey
it
help
could not
at all is that
that is similar to
between
the one
alcohol-
obviously
help
doing
did
it when
so suited
driving
under the influence. Dr.
ism
purpose
his
getting caught.
While
attempted
explain
Shaw
to the court
country Irey
in this
refrained from com-
metaphorically the difference between hav-
mitting any
against children,
crimes
never
ing
urge
acting
urge:
“Pe-
touching
once
an American child in an
dophiles
capable
re-offending,
of not
inappropriate way, and instead consorted
they
if
have an
in the
urge,
way
even
same
prostitutes.
with adult
It was
while
compulsive
can
dessert eaters
choose
Cambodia,
get away
where he could
eat
to not
dessert.” The district court did
children,
sexually violating
that he did it so
metaphor
experts’
not heed the
or the
“many many times.” And he
Shaw,
acted with
or the
of Dr.
reports
testimony
cunning.
put
As
Hill
it:
Judge
pedophiles
instead reasoned that because
urge they
have the
diminished voli-
I also disagree
apparent
with the
resisting
urge.
weighty
tion when
comes to
consideration
the sentene-
Judge Tjoflat’s separate opinion
blurring.
accuses us
the district court insisted on
More
using
reports
cited
we have
to hold that
fundamentally,
Tjoflat’s
Judge
separate opin-
clearly
finding
the district court
erred
statement,
disregards
ion also
our clear
pedophiles
“purely
acting
are not
in a
voli-
attached,
which this footnote is
that because
way
sexually
they
tional”
when
abuse chil-
government
point,
has not contested the
J.,
Separate Op. Tjoflat,
dren.
at 3539 & n.
accepting
purposes
we are
as a fact for
of this
doing
opinion ignores
so that
the fact
finding
pedophiles
case the
that when
molest
Shaw,
opinion
that Dr.
whom
describes as
acting
"purely
children
“
are not
in a
witness,”
1253-54,
Irey’s
'star'
id.
way
volitional”
but instead their crimes are
distinguish
pedo-
himself careful
between
*39
part”
pedophilia.
“due in
to
substantial
their
molestation,
philia and child
a distinction that
mat
This
because it
point
important
this
the notion that
gave to
ing judge
for the variance is
the reason
type
ters whether
account
some
acted on
defendant
outside
present
de-
case
defendant acted
a fact that takes
The
of “sickness.”
indi
by
obvious
covered
cunningly and with
the heartland of cases
liberately,
at least
in
Supreme
the lives of
Court
guideline.
He ruined
delight.
vidual
of)
(that
know
we
to
forty-three
Kimbrough
children
that decisions
us
structed
triumphs on the
his
published
respect
and then
when
“may
greatest
attract
vary
see, com-
all the world to
internet
sentencing judge
particular
finds
marker writ-
scurrilous black
plete with
heartland to which
case outside the
nine-year-old girls’
tattooed on the
ings
intends individual Guidelines
Commission
skin.
at
Kimbrough,
U.S.
apply.”
(Hill, J.,
omit
(quotation
concur
marks
at 1227
of the most, may many, describe if not criminals good people “any other without sort of considering history While the “the and criminal conduct representing or conduct defendant” compo- characteristics poor Irey merely character.” did not 3553(a)(1), slip nent of court also up and commit per- one criminal act. He weighed in Irey’s favor his status as a sistently halfway flew around the world on family community: man and member regular basis for four or five and By accounts, all Mr. has been a “many many sodomized, times” raped, good husband father for his wife sexually helpless tortured children. And good and children and a friend to his he recorded his sexual abuse and debase- good friends and a to his commu- person ment of the little thefts, think, photographs children nity. The I lies and re- videos for personal enjoyment his own ferred to Ms. Hawkins were essen- to share with others. No one tially part up of his to cover who effort his illness, good commits such crimes has because I think other than heinous regardless character of whether the crimi- Irey, acts Mr. there’s no indication nal, raping, sodomizing, that he while he was not engaged has other sort of children, represent- torturing helpless good criminal conduct was a conduct or father, ing poor husband, character. or member of his local *41 1204 character, the term has good (as person a distinguished from
community mentioning. meaning unreasonable worth community). It was no world vary to judgment a clear error and husband, fa- Irey as a The facts about that he theory Irey downward community are ther, and member Martin, F.3d character. See good has weigh question is how to disputed, (disapproving 1239-40 at uncon- sentencing purposes. The them for lack of on the defendant’s emphasis court’s Irey facts are that as husband troverted na- and the aberrational a criminal record prosti- cheating on his wife had been crimes, guidelines which the of his ture years, was past for the which tutes account, point- already taken into had years they had been three-fifths of the spanned criminal conduct ing out that his F.3d at 1192-93 Pugh, married. See harm). caused much period beyond findings (considering sentence sim had a somewhat The Fourth Circuit that were salient facts “these additional it in States ilar situation before United uncontroverted, elicited, at the sen- (4th Ali, 258-59 Cir. Abu Gall, 552 tencing hearings”); see also U.S. 2008), court in a case where (the appellate varied involving attempted terrorism had “will, course, the total- take into account guidelines range sen from downward circumstances”). He did it on a ity of the years after life to a sentence of 30 tence of Orlando, his weekly basis while he was things, many considering, among other Irey’s Because of immoral hometown. “describing Abu letters it had received conduct, he contracted a venereal disease reputation young as a ‘general Ali’s decent passed it on to his wife. He lied to his character.’” ‘good man’ and his overall Irey’s depraved crimi- wife. As a result of Vacating 30-year Id. at 268. family expen- his lost their nal misconduct lenient, unreasonably the Fourth Cir house, savings, and their second- sive their letters, by those ex cuit was “unmoved” family Irey admitted generation business. plaining: spent he had so much time because reputation” person of “decent What mar- years pursuing over the sex outside leaders of coun- seeks to assassinate his children riage, spent he less time with character” person “good tries? What cheating my “I than he should have: of fellow hu- destroy aims to thousands taking them to things children out of like innocent of beings man who are I game, or a because parks basketball him? This is not transgressions against go pick up prostitute.” to In view of had it, understand good character as we facts, significant no those uncontroverted provide letters of this sort to allow given Irey’s having been weight can be variance for such a basis substantial good “a husband and father for his wife character” of deprive “good be to would and children.” all its content. just Irey lied not to his wife good person Likewise here. Id. What it, “I would lie put others as well. As he character commits the horrific crimes I did not need to.” people even when fifty different Irey against did at least business, which family from the He stole many” occasions “many children and on century started a half be- his father had five-year period, stopping four- or over a long- put fore. His criminal conduct finally caught? when he is What business, cost- company out of established applies as well to this Fourth Circuit said community their ing fifty members of the Irey good “This is not case and what did: club member- Irey jobs. If No number of civic it.” character as we understand ships outweigh Still, can the harm that Irey the district court.29 it was not unrea- family caused his wife and and the commu- sonable for the district court to conclude nity. has a “very loving family” and *42 “deserves whatever credit he should take however, was, appropriate
It for the dis- for having produced people.” these We trict court to find and “Irey consider that grossly unreasonable, would find however, obviously very loving family” has a any suggestion that the Irey may credit be “deserves whatever credit he should take due for family’s his feelings for him could having produced people” for these who remotely even approach heavy weight spoke on at his behalf the sentence hear- stacked against him for the criminal acts ing. That is true though even the ex- he committed. Irey’s family tremes members went to in expressing them affection for and devotion
himto seem detached from reality Age d. the circumstances in which they were The district court also considered upon called to do it. It incongruous at “[ajnother aspect of defendant’s character” best to describe the man sexually who had Irey’s age weighed in his favor many tortured so little children as “lov- the fact that with “even the minimum sen- “hero,” “star,” ing,” a and as one who going tence here he’s to be an old man ... taught others “so much about life and when gets he out of prison.” Irey was 43 love,” way and who “had a touching or 44 years old when he started sexually Still, people’s lives.” we are sympathetic, children, abusing and he was 50 when he was, as the district court to the terrible was sentenced. With the sentence the plight Irey’s emotional family was in district court imposed, minus time off for because of his crimes. It is admirable that good 3624, behavior Irey under would be him, by chose to stand but in deciding years 65 old when released. With the that weighs how in the sentencing calculus maximum sentence years, of 30 minus time their statements have to be considered behavior, off for good Irey would be 76 context. years old when released. 18 U.S.C. be, may It well government as the 3624; 523.20, §§ 28 C.F.R. 541.13 suggests, good some of the things — (2005); Thomas, see also Barber v. Irey’s family members say had to about U.S.-, L.Ed.2d him are testament to ability his to lead a (2010).30 double life and to evade detection even
those closest to praise him. Their We fail Irey to see how those facts may prove that he knew how to keep Irey his show is different any from other family and friends in person the dark about his who commits horrendous crimes side,” “terrible dark as he described it to middle age and faces a long prison sen- that, report We know from Dr. Shaw's or in the Separate Op. district court. See 29. Irey’s psychological least the time of one of J., 93, 1264-65, Tjoflat, at 1263-64 n. 1265. evaluations, his wife was unaware of the se- position opinion That is an odd for that verity of his crimes. Dr. Shaw also testified opinion take since the itself cites and discuss- people going that "I assume that to mini- §es in connection with things mize and leave some of the worst out.” "honesty.” Id. at 1229-30 n. We will not law, blind give ourselves to the a less than Judge Tjoflat's separate opinion takes the it, accounting ignore honest position relevant performing that in our statute, merely review we statute should not because it was not consider discussed in such as 18 U.S.C. unless it was cited the district court. standpoint From the defendant’s Seljan, v. States tence. United Cf. banc) Cir.2008) (en (9th unreasonably not be 997-98 sentence should F.3d to 20 sentenced (87-year-old defendant under all the circumstances harsh children); abusing Unit years sexually substantially not differ case and should Zastrow, 534 F.3d ed States given to another simi- from the sentence Cir.2008) (8th man (73-year-old sentenced of a defendant convicted larly situated coercing an 8- enticing to 20 circum- offense under similar similar sexually conduct girl explicit into year-old stances. Besides, if photographed). which he No. 98- (quoting S.Rep. at 1195 *43 successfully evaded detection had not 3258-59); 75-76, 225, 1984 U.S.C.C.A.N. much be that or five he would four Lychock, 578 also United States v. see prison. In younger gets when he out (3d Cir.2009); 214, 220 United States F.3d rewarding Irey for circumstances be these (8th 733, Face, F.3d 740 v. White 383 evading him for detec ing older rewards Cir.2004); Beasley, States v. United that. it unreasonable to do tion and is (1st Cir.1993). 280, F.3d 3553(a)(2)(A) 2. Section punishment Because a district court factor that second crime, the more serious the fit the should sentencing, and that must consider greater is the the need criminal conduct must consider review- appeals court of longer and the the sentence for retribution for substantive reason- ing the sentence The seriousness of a crime should be. ableness, “the need for the sentence is directly the harm it causes or varies ... to reflect the seriousness imposed greater It that the threatens. follows law, offense, respect to for the promote crime, and the harm the more serious the just punishment for the provide and to pun be for the longer the sentence should 3553(a)(2)(A). This offense.” 18 U.S.C. to fit the crime. As we have ishment beyond, extends but also ov- requirement before, stated sex crimes “[c]hild with, the “nature erlaps to some extent egregious despicable and among the most compo- of the offense” and circumstances criminal offenses.” of societal and United 3553(a)(1). nent of (11th Sarras, States 3553(a)(2)(A) consideration is the Cir.2009) (affirming as reasonable 100- “just concept, deserts” which carries the offender sex year sentence for a first who retribution, the need to make the need for single 13-year-old girl and ually abused a crime, need not punishment fit the and the it). Irey’s criminal photos of And took justly. just punish but to punish conduct, beginning, as we stated at the quoted Report we from the Senate Pugh in a virtually unparalleled egregious “most regarding provision: this of crime. circuit despicable” and field This “just des- purpose essentially This — few, any, if other criminals who has seen concept be reflected clear- erts” —should long span raped, have over such a time sentences; way it is another ly all children, sodomized, many so and tortured that the sentence should reflect saying very young, and all of some of whom were of the defendant’s conduct. gravity among helpless peo the most whom were public’s standpoint, From the sen- man, Irey, 200-pound in the world. ple type length of a tence should be helpless young victims not subjected his reflect, among adequately other will anal just intercourse but also to to sexual the harm done or threatened things, sodomy torture that and oral sexual offense, interest public and the depravity beyond far the heartland a recurrence of the offense. went preventing his astating rape pres- for child molesters. treated dimension that is not even objects, toys, raped. Long-term as as his which ent when an adult is child victims pleased. he bought and then did with as that sexual grossly he studies show abuse is if pain. cried out in As He smiled intrusive in the lives of children photo- enough, Irey also were harmful their normal psychological, debauch- and video recorded his graphed development ways emotional and sexual internet, ery distributed it on the just which no or humane society can toler- thereby guaranteeing (citations that the record of and quotation ate.” marks omit- us, inspiring him ted)). would outlast and all of justices that, agreed All nine about other child molesters to commit crimes and so do we. children.
against
Even
the Kennedy opinions,
before
has been
Much
said to describe
Supreme
long
had
recognized
Court
grave
harm that sexual
emphasize
sexual abuse
devastating
childhood
has
children inflicts on its victims.
abuse of
and long-lasting effects on its victims. See
descrip
best and most recent
Some
Ferber,
New York v.
n.
U.S.
that harm can
in Kenne
tions of
be found
*44
9,
102 S.Ct.
3355 n.
he leaves
burdensome,
sexually
they
but
are
every
annoying,
offender who
mend for
5D1.2(b).
§
being
See U.S.S.G.
bars.
equivalent
abused children.
of
behind
not
super
that someone on
it is true
were,
While
no convicted sex offender
they
If
free,
entirely
it is
not
release is
vised
in prison
he remained
would care whether
in a
confined
that he is not
equally true
subject
those condi-
to
or was released
has
Supreme Court
either. As the
prison
tions.
release, in
to
held,
contrast
“[supervised
imposing
a sentence below
in
of
lieu
punishment
is not a
probation,
range,
the district
advisory guidelines
v. Grander
incarceration.” United States
enough
unreasonably
give
failed to
court
1259, 1266,
39, 50,
son,
511 U.S.
“the nature and circumstances
weight to
(1994).
“a
And
term
case in the young raped children is true here.32 were at 220. The same producing pornography, child course of in United States The defendant actually raping. did the Irey is the one who (7th Cir.2007), had F.3d 668 Goldberg, 491 pornog- child possessing convicted of been crime The more serious the 63 to range was raphy guidelines and the it, in the defendant’s role greater and the The district court months. Id. at 669. strong it is to send a important more impose only a nominal downward to varied that will deter others. message clear followed a decade to be prison sentence Irey the district court In Id. at 669-70. The supervised release. under-weighed not have should reversed the sentence Circuit Seventh 3553(a)(2)(B)adequate deterrence factor substantively because the unreasonable conclusory of its on a statement based things, had judge, among other district (what subjective views the Sev personal “idiosyncratic on her based sentence “idiosyncratic peno would call enth Circuit views,” at and had id. penological views”) the value of questioning logical of deterrence “neglected considerations in the sexual involving crimes deterrence desert,” at The court ex- id. Kimbrough allows a abuse of children. why important was so plained deterrence vary guidelines court to from the district involving in the sexual abuse of crimes poli that the solely judgment on its based children, including pornography child guidelines wrong. See cies behind crimes: at 575. 552 U.S. When in Young raped children were order so, however, “closer re district court does production pornogra- enable the Id. reasoning view” of its is warranted. downloaded phy that the defendant both review, Exercising that we conclude himself uploaded consumed —both a clear error of the district court made great- to others. The and disseminated judgment downplaying importance por- er the customer demand for child deterring type this of crime. pro- more that will be nography, behavior, influence duced. Sentences Jp. 3553(a)(2)(C) Section Congress thought when in 18 so least that a The fourth factor deterrence a U.S.C. made sentencing, that a must consider statutory sentencing logic factor. The appeals court of must consider review- suggests lighter that the of deterrence reason- ing the sentence for substantive punishment downloading up- ableness, is “the need for the sentence greater loading pornography, child ... from imposed protect public for it and so the the customer demand further crimes of the defendant.” produced. more will be Supreme Pugh, rejected the deficiencies the Court iden- we the notion that Kim- hibit guidelines] brough-style policy disagreement justify the crack cocaine [in could tified pro- Kimbrough.” We do not rule out the impose Id. the district court's decision pornography possibility that a court could ever bation-only in a child sentence disagreeing with guidelines a reasoned case for the minimum make case where pornog- judgments the child policy behind F.3d at 1201 n. 15. We was months. 515 simply raphy guidelines. We hold that in this guidelines concluded that the sentences crimes, (involving pornogra- judg- production of child pornography which reflect case child Pugh (involving possession child Congress Sentencing phy), as and the ments both pornography), did not come the district court Commission as to the seriousness of the of- recidivism, doing “do not ex- close to so. fense and the risk of *49 3553(a)(2)(C). specific This is the duced using U.S.C. testosterone-reducing incapacitation factor. drugs, deterrence Dr. Shaw testified that “come side-effects,” with a number of that Berlin, psychiatrist, Dr. the defense did “they’re always useful,” and that when Irey committing not rate the risk of more if Irey going is released “he’s to have against high, crimes children as low or experienced a naturally reduction in tes- if gave opinion Irey instead his that tosterone and a reduction sex drive.” mercy given opportunity, “shown Dr. say Shaw did not through any society he will be able to re-enter as a safe combination of factors and circumstances productive report citizen.” Dr. Shaw’s Irey would a negligible risk of com- was more descriptive risk. It re- mitting more against crimes children. assessing vealed under one method of risk, method, Irey’s the Static-99 score The district court credited opinions placed him in “the Medium-Low risk cate- of experts, the two which it re-eharacter- gory sexually re-offending.” Accord- Irey ized as having “a low risk of recidi- Shaw, ing study to Dr. the research he vism.” But then the court added: “Of people Irey’s relied on indicated that course, all of that is somewhat academic 12%, 14%, score had recidivism rates of because gets time he out of prison, five, ten, years. and 19% after and fifteen he’ll be likely age most at an where recidi- report Shaw did add that: au- “[t]he unlikely, just vism would be from a physio- instrument, in reviewing thors de- logical standpoint.” velopment samples, found that few individ- At the completion of the sentence that uals beyond age sixty. recidivated him, the district court imposed on with the Though finding this has mixed research considered, 3624 reductions Irey would support, general age as males their old. There is no support in Irey’s sexual interest wanes.” score on finding record for a that a 65-year-old another instrument used to assess the risk male with what Dr. Shaw called “deviant recidivism, the Minnesota Sex Offender interests,” who has a just record of not Tool-Revised, Screening placed him raping and abusing children but also of “the Range.” Moderate Risk The Shaw them, sexually torturing is too old to do it report that all concluded of the risk assess- again, thereby rendering concern about re- ment “suggest factors a moderate to low cidivism “academic.” That is not what Dr. charge,” moderate risk of a new which Shaw said about the aging process. He could through “be reduced continued treat- said, talking when about whether he would ment and informed supervision upon his drug advise therapy Irey when he was release.” released, they age that as “going men are point At during one the sentence hear- experienced to have naturally reduction ing Dr. Shaw Irey testified that was “es- in testosterone and a reduction in sex sentially in the medium low to medium or drive.” That saying is different from categories, moderate risk which is—which pedophiles in their sixties lose interest is below a likely.” threshold of At a later sexually abusing children physically or are point, “overall, he testified that I him find incapable of doing so. No one testified be, said, risk, as I a moderate a low- the risk of recidivism is “academic” risk, moderate low in psychopathy.” He pedophile seventies, for a in his sixties or immediately Irey added that “does have— probably simply because that is not true. has deviant In discussing interests.” whether sexually the risk that would One need look no further than the facts abuse children the future could be re- in published opinions to that. see For
1214 so, not remove the doing age and does Seljan, 547 F.3d States example, United Cir.2008) (en banc), (9th Tracey a & involved threat. See Mark Motivans 993 was arrested Kyckelhahn, man in mid-80s who Federal Prosecution Child his of “sexually 2006, way Philippines to the his Bureau Exploitation Sex Offenders by engaging children 2007, 1, educate” some Bull., at tbl.6 Dec. 5 Just. Stat. at 997-98. with them. Id. sexual relations of offenders arrested (reporting that 7.3% Philippines 43 times He had been children, of includ- exploitation for sexual he was years, 11 when during previous abuse, and ing pornography, child sex sex 74 and approximately of ages between the 60); age are over the of see transportation, with children in order to have sex (“The Hall, at supra, Hall & 457-58 also he agents He told after there. See id. usually long term. pedophilia course “sexually that he had been was arrested study relationship that examined the for about educating” ages children 8 13 crimes, age types of sexual between years, means that he started 20 which Dickey up et al found 44% years id. he was around 65 old. See when of- sample in their of 168 sex pedophiles doing it bragged at He had about age range adult fenders were the older and video collection scrapbook and had a years). compared with (age 40-70 When at Even pornography. of child Id. sadists, pedophiles com- rapists and sexual years old at the time of though he was 87 offenders, indicating prise 60% of all older imposed the district court a 20- pedophiles offend their later him. The Ninth year sentence on Id. greater than other sexual offend- at rate rejected his attack on the sentence Circuit (footnotes omitted)). Moreover, ers.” as though even it was tanta as unreasonable out, photos government points 1007; see mount to a life sentence. Id. videos show that some the worst (affirm Zastrow, also 534 F.3d 855-57 potency. Irey’s require acts do not sexual 20-year of a ing conviction and All Dr. of this is consistent with Shaw’s coerced 73-year-old man who enticed or testimony that: can’t cured” of “You sexually 8-year-old girl explicit into “Cures, you forget can pedophilia, and photographed); conduct he United which about it.” (3d MacEwan, States v. that the This Court has stated threat (defendant Cir.2006) repeatedly had violat sexually by pedophile recidivism a who has possession, prohibiting ed federal laws “appalling.” Pugh, a child is abused distribution, pornogra receipt of child (“As Congress F.3d at 1201 has found and phy ages when he was between the discussed, child sex offenders 70); we have 66 and v. Purk approximately Weiler (8th Cir.1997) ett, appalling rates of recidivism and (plain F.3d tiff, inmate, under-reported.”); see prison a state had sodomized their crimes are Allison, for 3 sexually abused female child States v. F.3d also United (5th Cir.2006) 7 and years, beginning girl when the ex- (“Congress 405-06 70). The approximately the defendant was rate plicitly recognized high of recidi- facts of those cases show that the risk of offenders, especially vism in convicted sex sexually abusing male sex offender chil offenders.”). Supreme child sex age after he reaches the of 65 is dren concerns over “grave Court has also noted anything but “academic.” high among rate of recidivism convict- dangerousness ed sex offenders and their reports
Studies and this field class,” found that risk “[t]he as a and has judicial consistent with what decisions offenders is posed of recidivism sex pedophiles sexually show: who have Doe, frightening high.” Smith v. abused children are a threat to continue
1215 103, 84, 1140, 1153, who, 123 S.Ct. U.S. 155 the sex offenders Irey, like have a (2003) (quotation L.Ed.2d 164 marks omit- high diploma school college but not a de- ted). Supreme gone Johnson, gree. Court has even James L. Sex Offenders further, finding that “[w]hen convicted sex on Federal Community Supervision: Fac- society, they Revocation, offenders reenter are much tors that Fed. Pro- Influence bation, than likely any type 2006, 18, more other of offend- June at 19. And the rape er to be rearrested for a new or experience of states which have had sex Lile, sexual assault.” McKune v. release, 536 U.S. offenders on supervised such as 24, 33, 2017, 2024, probation 153 L.Ed.2d or parole, shows that it often (2002).33 47 prevent fails to sex offender recidivism. al., Patrick Langan See A. et Bureau of Nor does the fact that will be sub Statistics, Justice Recidivism Sex of Of- ject to supervised restrictions and release 199k, Released Prison in fenders from gets prison any when he out of guar offer (2003) (“Of 4,163 14 sex offenders rear- any antee that he will not commit crimes. crime, rested for a new nearly [state] 9 in alone, example, In 2003 12.8% all (87%) 10 were on parole when taken into supervised federal offenders on release custody....”). committed new crimes. Bureau of Justice Statistics, Justice, Dep’t of informative, Federal Crimi Those studies are but even Trends, 2003, nal Justice at 37 tbl.29 without them we supervised know that re (2006). Sex offenders often fail to com guarantee lease is no that a criminal will plete programs. their treatment See Lor not commit more crimes gets when he out Stalans, etta J. prison. Adult Sex on of Courts of appeals regularly see Offenders Community Supervision: A Review Re cases which serious crimes were com cent Assessment Strategies and Treat mitted those on supervised release. ment, 564, See, 31 Crim. Just. & e.g., Wilk, Behav. 573 United States v. 572 F.3d (“Sex (2004) (11th Cir.2009) high 1229, offenders have rates 1232 (possession of either dropping being expelled out or from pornography); child United States v. Williams, (11th treatment. Termination rates in the 846, Unit 322 Fed.Appx. Cir.2009) outpatient ed States programs treatment (unpublished) (aggravated child ranged have quarter from one to more molestation and enticing child for inde ”). than one half of adult sex offenders.... cent purposes);34 United States v. Hors Supervised (11th Cir.2008) fall, release is revoked for 37.7% of 552 F.3d Judge Tjoflat’s separate opinion argues Unpublished opinions precedential, are not 36-2, see 11th Cir. R. and we do that we not cite should not consider of the deci- any legal holding point Williams for of law Supreme sions of the Court and this Court Instead, opinion. discussed in that we cite high pedophiles about the recidivism rate of solely as a source of facts about the crime special and the need for deterrence when committed while super- the defendant was on punishing against sexual crimes children. 36-2, vised release. See 11th Cir. R. IOP 7 J., Separate Op. Tjoflat, at 1264. rea- (“The may cite to them ... to establish gives wanting pretend son it us to case.”). the ... facts of the those decisions do not exist is that were contrast, By Judge Tjoflat's separate opin not cited in the district court. Id. No mem- “precedent” ion cites as point on a of law two Court, certainly ber of this not the- author unpublished opinions, Separate Op. Tjoflat, opinion, suggested has ever before that in J., which under our rules and our determining ought the law we to confine our- precedent precedent. cannot be See 11th Cir. selves to the decisions that were cited in the 36-2; R. see also United States ex rel. Atkins v. We, courts, duty McInteer, district court. like all have a (11t 1358 n. 15 hCir.2006) J.). apply (Tjoflat, to find and the correct law. think I we want to be able to have them United
(viewing pornography); child (8th Trobee, F.3d Protecting v. smaller case loads.” Our States Cir.2009) pornogra of child (possession Sexual Predators Nation’s Children from Azure, F.3d phy); United States Be Criminals: What Needs to and Violent *52 Cir.2008) (8th 904, (robbery); Unit 905-06 Done?, Hearing Before the Subcomm. on 763, 763-64 Defoor, v. 535 F.3d ed States Terrorism, Crime, Security and Homeland Cir.2008) assault); (8th (aggravated Unit Judiciary, H. on the 109th of the Comm. (1st 31, 34 Eirby, v. 515 F.3d ed States (2005) (statement Fred Ber Cong. 30 of S. Cir.2008) (sexual minor); abuse of Unit lin, M.D., Professor, Hop Associate Johns Ralph, v. 480 F.3d 888-89 ed States University). kins (child (8th Cir.2007) molestation); United why many Regardless of so convicted (5th F.3d Spraglin, v. States release, supervised including on criminals Cir.2005) (murder); States v. Mar United offenders, crimes, fact sex commit new (8th Cir.2004) tin, (rape); 382 F.3d Supervised that do. release is Marshall, 42, 44 v. 371 F.3d United States release, it unsupervised better than (2d Cir.2004) (robbery); see also society protec- not offer the level of does States, 646 McNaught F.Supp.2d v. United tion from a convicted criminal that incar- (S.D.N.Y.2009)(arson). 372, 380 Despite ceration does. that undeniable may be understaff- problem Part of the fact, Irey, court that the district found one resulting high and the case loads of ing prosecuted of the worst sex offenders ever doing responsibility those who have the circuit, recidivism, in this had a low risk of example, Sep- as of supervising. For pose or would a low risk when released at 30, 2009, 14,987 people there were tember it imposed the end of the reduced sentence in the post-conviction supervision under him. on probation system in this circuit federal alone, 12,216 supervised of them on however, government, has never at release. Admin. Office United clearly factfinding tacked that as errone Courts, Report 2009 Annual States Instead, throughout ous. has insisted Director: Judicial Business the United that it appeal challenging this is not Courts, (forthcoming spring States tbl. E-2 result, factfindings. purposes As a for 2010). And that does not count all of those that at the appeal of this we will assume or the pre-trial supervision on thousands 17½-year end of a sentence—15 presentence investigation reports imposed Irey months after it was would — the federal officers this circuit have to present a low risk of recidivism.35 complete year. each The nationwide situa- mean, however, That does not (the up
tion was summed
Dr. Berlin
imposed
the district
will
Irey
purposes
same one
evaluated
who
adequately “protect
public
from fur
case),
of this
when he testified before Con-
defendant,”
ther
crimes of
gress
“Many
parole
that:
of these
3553(a)(2)(C)
very
requires.
thin.
A low risk is not
probation people are stretched
J.,
Tjoflat,
Although
part
opinion
at 1264-65.
we have
This is another
of our
Judge Tjoflat
separate opinion
pointed
in his
has mis-
out for the benefit of
opinion operates under the errone-
courts in the future the reasons and decisions
read. His
rejected
indicating
finding
assumption that we have
that the district court’s
ous
finding
wrong,
government
that when
is re-
because the
has not chal-
district court's
lenged
factfinding
expressly
we
imposed on him
ac-
leased from the sentence it
finding
goes
supervised
pose
cepted
the low risk of recidivism
release he will
reviewing
Separate Op.
purposes of
this sentence.
low risk of recidivism. See
attempted
specify any particular
not
Adequate protection
as no risk.
the same
given
guide-
the level of
that should be
weight
of two variables:
is a function
will occur and the level of
so
range
that conduct
lines
and will
do
now. Our
risk
if that conduct
subject
that will be inflicted
harm
best discussion of the
came
Boyd,
(11th
See
States
Hunt,
does occur.
United
States v.
ty years only because that
statutory
is the
ic
good
work—that he had been “a
person
maximum
way
based on the
the crime was
community.”
to his
guidelines
The
also
charged.
supra
See
at 1169-70. In view
advise,
policy,
as matter of
that aberrant
of all of the facts and circumstances of this
may
behavior
be used
support
a down-
case,
given
the weakness of the dis
if,
departure
ward
among other
trict
explanation
court’s
for deviating from
things, “the defendant
single
committed a
guidelines
range,
effectively
it
gave the
criminal
single
occurrence or
criminal
guidelines range no
weight
impos
real
in
transaction” that
significant
was “without
ing the sentence.
planning” and “was of limited duration.”
In addition to requiring consideration of
5K2.20(b).
§Id.
This
any
case does not fit
guidelines range,
Sentencing
Re-
requirements,
of those
yet
the district
form
requires
Act also
that district courts
court used what amounted to an aberrant
any pertinent
consider
policy statement
theory
part
justification
behavior
Sentencing
issued
Commission. 18
variance,
for its downward
“I
stating:
3553(a)(5).
§
U.S.C.
policy
The
state-
think other than the acts of Mr. Irey,
guidelines
ments in the
that are relevant
there’s no indication that
engaged
he has
to this
departures
case address when
any
other sort of criminal conduct or
appropriate in calculating the sentencing
representing poor
conduct
character.”37
range.
dealing
We are not
guide-
with a
here,
departure
guidelines
lines
decision
but a
state as a
poli-
matter of
“[mjental
Still,'
variance
cy
decision.
that
even
and emotional conditions
though
policy
way
statements are in
ordinarily
no
are not
relevant in determining
3553(a)(5)
binding, §
requires
departure warranted,”
be whether a
except
37. The district
thought
doing
court either overlooked the
"represent!]
so does not
man,
Irey,
fact that
patronized
married
had
poor character.”
prostitutes
weekly
years,
on a
basis for 15
Everyone agrees
Irey
that what
Id.
5K2.8.
present
not
here.
in circumstances
description, yet
did fits within
vary
down-
deciding
Yet
5H1.3.
district court varied downward.
ward,
placed significant
the district
it character-
Irey having what
weight
binding
on the district
While
To the
pedophilia.
“illness” of
as the
ized
court,
policy
guide
statements
court relied on its
the district
extent
lines,
required by
it was
the Sen
which
pedophile
he was a
that because
belief
consider, all
tencing Reform Act to
advise
raping
capacity to resist
had diminished
guidelines
below the
against a sentence
children,
his criminal behavior
or that
effectively ig
range. The district court
an-
part
pedophilia,
in substantial
due
nored them all.39
statement
is relevant.
policy
other
that a court should not
state
guidelines
3553(a)(6)
6. Section
ca-
based on diminished
depart downward
3553(a) requires
that district
Section
actual
“the offense involved
pacity where
courts
sentencing,
appeals
courts in
violence,” or
threat of
or a serious
violence
sentences,
reviewing
“consider ...
has been convicted of
the defendant
where
unwarranted sentence dis
need to avoid
Chapter 110 of Title
under
an offense
parities among defendants
similar
§ 5K2.13.
Irey was. Id.
which
guilty
records who have been found
3553(a)(6).
guideline policy state-
similar conduct.” 18 U.S.C.
There are also
particularly important
This factor is a
one
upward departure
advising that
ments
reviewing the substantive reason
when
case. While
appropriate
this
would be
because one of the
ableness of a sentence
extreme
conduct was so
Irey’s criminal
purposes
appellate
review of
primary
calculations maxed out
guideline
that the
out
in or
sentences is to iron
differences
depar-
upward
even without
at life
*55
Booker,
disparity.
to avoid undue
543
der
3553(a)(2)(5)
tures,
re-
expressly
still
264, 125
at 767.
S.Ct.
U.S.
be con-
policy
that those
statements
quires
Report
As the Presentence
sidered.
involving
to find a case
It
is difficult
noted,
§to
2G2.1
the comment
this case
compares
of children that
sexual abuse
departure may
upward
(at
that “[a]n
advises
Irey’s
The number of
victims
this one.
if the
involved more
(four, five,
warranted
offense
50),
be
very young age
least
old)
them,
cmt. n.6.38
10 minors.” Id.
2G2.1
years
than
of some of
and six
involved at least
Irey’s criminal conduct
the abuse and torture
extreme nature of
minors,
them,
yet
than 10
number of
five times more
that he inflicted on
(four
five),
or
and the
court varied downward.
it went on
pornogra-
an
graphic
statements also call for
amount of
child
guideline policy
massive
produced and
phy
single-handedly
the defendant’s
that he
departure “[i]f
upward
(at
heinous, cruel,
1,200 photographs or
unusually
bru-
distributed
least
conduct was
sexually
himself
abus-
tal,
showing
videos
degrading to the victim.”
Id.
or
erroneous,
regulation
with the
inconsistent
comment
2G2.1 of
38. The cited
technically
policy
a
guidelines
they interpret,
contrary
state-
to the Constitution
ment,
guidelines provide
law.”).
that it is to
or federal
§ 1B1.7
treated as one. See U.S.S.G.
("Such commentary
is to be treated as
exception.
court did
39. With one
The district
statement.”);
policy
legal equivalent of a
see
release,
supervised
impose
term of
a lifetime
Smith,
v.
568 F.3d
927
United States
also
5D1.2(b)
policy
in U.S.S.G.
statement
(11th Cir.2009) ("The commentary and
n. 1
where the defendant
advises for all cases
Sentencing Guide-
application notes of the
against a
a
offense
minor.
convicted of
sex
authoritative,
plainly
unless
lines are
children)
occasions);41
Kapor
United States v.
ing
combine to make his
those
delis,
(11th Cir.2009) (35-
criminal behavior the worst of
worst.
1221
defendant,
(140-year
had sex
one
sentence for the
as his friend
with
who
then filmed
Carter,
prior
two
for lewd acts
them);
v.
292 had
convictions
in
States
of
United
Cir.2008)
minors,
(11th
sexually
front of
who
abused and
(45-year sen-
Fed.Appx. 16
photographed
boys
ages
between the
defendant,
three
specified
with no
tence
6-year
16
approximately
of 8 and
over an
possessed approxi-
history,
criminal
who
period, produced
pornographic
at least 150
text,
4,800
and
files
image,
movie
mately
victims,
of
images
transmitted
un-
describing
exploita-
the sexual
depicting or
images
known number of those
over the
tion,
bondage, of at
eleven
including
least
internet, and
possessed
either
or transmit-
14;
7 to
of
young girls, ages
some
different
at least
engaging
ted
24 videos of children
produced
those
and distributed
files were
conduct);
sexually
in
explicit
United States
and
him
depicted
defendant himself
(11th
Hersh,
Cir.2002)
v.
After
factors,
the other
the district court to conclude to the con
district court said: “It comes down my trary.
otherwise,
Were we to hold
“we
promotes
view of what
respect for the law would come perilously
holding
close to
provides just
punishment.” The
appellate
dis-
review is
procedural
limited to
trict
right
court was
about
importance
irregularity,” and that the Supreme Court
3553(a)(2)(A)
factor,
which re-
has
appellate
“eviscerated
review at the
quires consideration of the need for the
same time that it has
appel
mandated the
imposed
“to reflect the serious-
late courts to continue to review sentences
offense,
ness of the
promote
respect for
for reasonableness.” Pugh, 515 F.3d at
similar
3553(a)(6).
conduct.”
18 U.S.C.
quiremenl that the record in other cases be
That information can be discerned from the
scoured before the sentences in those cases
appellate
cases,
opinion in
including
most
can be considered
impossible
would render it
those that we have cited. See also Kim
statute,
comply
with the
and we will not
brough, 552 U.S.
This is one of those unusual
left.
top
guidelines range
judg-
of the
When we vacate a district court’s
the
and bottom
remand,
same;
routinely
years.
are the
both are 30
There ment
we
include
can
the
the
line of our
that we
upward
be no
variance because
bottom
decision
statutory
years.
sending
is
As a
the case back for “proceedings
maximum also 30
result,
holding
vari-
with
opinion.”
our
that no downward
consistent
this
Because we
totality of
ance is
under the
the
have determined that a downward
reasonable
devia-
guidelines range
facts
means
from the
and circumstances
this case
tion
this case
unreasonable,
be
that on remand the sentence must
30 is
it
follows
"substantively
to
a
which he was to be sentenced had
be
sentence is
unreason-
pleaded
by
trigger
equivalent
in the indictment and found
to
able”
of a new sen-
(emphasis
jury beyond
tencing hearing
appeal.
Separate
a reasonable doubt”
Op.
See
added)
omitted));
J.,
(quotation
decision,
marks
see also
Tjoflat,
at 1263 & n. 90. Our
Bartlett,
901,
however,
v.
United States
567 F.3d
910
is
consistent
Jones and its
Guthrie,
(7th Cir.2009);
Weir,
United States v.
557
progeny.
In United States v.
51 F.3d
243,
(6th Cir.2009);
(11th Cir.1995),
F.3d
States v.
255
United
explained
1031
we
that "[i]f
452,
(4th Cir.2006) (con
Curry, 461 F.3d
459
objection
pres-
after the
relevant
is raised
cluding
government, "by vigorously
that the
[pre-sentence investigation]
entation
re-
arguing for a sentence within
Guidelines
port,
imposition
... but
actual
before the
range
hearing,”
throughout
sentencing
sentence,
Jones is satisfied.” Id. at 1033.
preserved
objection
had
its
sentence
to the
Weir,
Specifically, in
held
we
that Jones was
though
object
did
even
it
not
at the end of the
clearly
satisfied because
district court
“[t]he
sentencing colloquy); United
v.
States
Shu
position
understood the Government's
mard,
339,
(2d Cir.1997).
120
340
F.3d
specifically rejected
Similarly,
it.” Id.
we
specifically recognized
long
We have
that so
in Miaurice
held
that the rationales behind
government
as the
raises "the
of its
crux
long
objection
"are served
as the
Jones
so
to
sentence,”
objection to the district court’s
it is
preserved
grounds
objec-
and the
for the
required
not
to articulate all the details of its
sentencing
tion are clear to the
court at the
Smith,
position. United States v.
39 F.3d
hearing.”
conclusion of
guidelines range, AND REMANDED. VACATED years.46 a of 30 sentence
HILL,
concurring:
Judge,
Circuit
V. CONCLUSION
I
the court
opinion
concur in the
judgment reversing
in the
and remanding
substantial deference dis-
Because of the
with instructions.
give
we
sentencing,
trict
are due
courts
I
I do so in
fact that
spite
origi
of the
is
about what
reasonable
their decisions
panel
nally concurred in the now vacated
always
them
wide
and almost
let
berth
Irey, 563
opinion, United States v.
F.3d
difference,
a
be-
pass.
though,
There is
1223(11th
vacated,
Cir.),
when less is sufficient no sentence 2251(c), what case would?” No U.S.C. purposes to set forth in the fulfill persuaded likely that is one has me duty Act. To Sentencing Reform do our be encountered. mistake, that we vacate the sen- correct imposed case, this, than aggravated the district and re- That more tence remained elusive. mand with instructions the defendant Judge Tjoflat's pong game. hyper- Having that no var- To borrow determined downward language, proceedings "gob- would bolic such reasonable, it would be iance is senseless up judicial resources” that could be ble[] permit the dis- remand with instructions spent Separate Op. better elsewhere. downwardly vary trict court to and resen- J., Doing Tjoflat, suggests as he at 1270. guidelines range again. If tence below the prevent appeal a would the first from sen- remand court on resentenced being from "the event” for tence main deter- years, would have to we vacate mining substantively whether sentence and send the case back. If the court send "the reasonable and would instead un- years, we then tried out a sentence 22.5 appeal message first [the mistakable to vacate that sentence and send would have tryout nothing on the road.” sentence] on, be, term, again. And so back and case back his Id. at to use 1268. That would pointless “shocking.” go ping at 1259. would Id. forth the case *61 argument After oral and the court’s on the basis of new evidence and argu- conference, finally I I realized that had present- that the never ments Government question been no an- putting has short, district In ed to the court. we have predicated upon swer it is because assumed the role of resentencer.
wrong It case assumption. asks that this Resentencing appeal defendants on does to demand the maximum assumed not harm to immense this court’s institutional the elu- sentence. But I now realize that relationship with the district courts case, I sive maximum sentence which transforming the district court’s sentenc- sought, here right before me. ing “main proceeding from the event” to a demanding This case is case This, turn, “tryout on the road.” cre- maximum sentence. perverse ates for the parties incentives Therefore, the sentence re- imposed, court, judicial and district misalloeates markably Congress from what reduced resources, disrespect and creates for the authorized, abuse if does discretion. And rule of law. does, my duty it I would then abdicate view, my question right for us to should I it vote to leave intact. ask is whether the court abused its ISo vote to reverse. “yes” discretion. The correct answer is its I factfindings because as best can un- TJOFLAT, Judge, specially Circuit them cannot derstand be reconciled with concurring part part: and dissenting it imposed. sentence The correct dis- I concur with the judgment court’s position to vacate and remand for resen- Irey’s sentence must be but dis vacated tencing. approach, With this we would sent as to the instruction that the district preserve our ap- traditional function as an years’ imprison sentence 30 pellate court and ensure the district separately ment. I write because event, court is the forum the main result, reaching this the court asks the required which is by United States v. wrong question gives wrong an Booker, 738, 543 U.S. Today’s swer. decision this cir cements (2005). L.Ed.2d approach cuit’s one difficult most questions posed United To roles States Book understand the Booker as- er, court, 160 signed U.S. S.Ct. to the district the Sentencing (2005): L.Ed.2d 621 what proper Commission, is the of appeals, the courts role of of appeals the courts now necessary to see the evolution of these once mandatory Guidelines advi over time. opinion roles This is therefore sory? organized as I part follows: describes the sentencing model before and under the
The court asks whether Irey’s sentence (the “SRA”)1 Sentencing Reform Act be- purposes achieves of 18 U.S.C. Booker, 3553(a). part fore II out sets the sentenc- After own conducting its Booker, ing part model after III “no,” applies analysis, the court answers then discretion proceeds abuse of review the case at to decide what be an would bar, appropriate part years’ imprison- surveys ap- sentence: 30 IV court’s ment. It proach resulting orders district court to im- institutional harm. pose this remand. It does so Part V concludes. Sentencing U.S.C.). Act of Reform Pub.L. No. scattered sections of 18 88-473, (codified, amended, 98 Stat. 1987 early model that com- An
I. Pr e-Booker
these four
was the
purposes
bined
“medi-
model,”
penological
so
because
cal
named
Pre-SRA
A.
believed that
measures tak-
experts
proper
I
sentencing model
Understanding the
during imprisonment could “cure” of-
en
understanding
today requires
apply
fenders, allowing
society
to reenter
them
*62
sentencing and
purposes of
deeply rooted
Accordingly,
productive
members.
re-
law.
in American criminal
their evolution
weight than
habilitation received more
the
purposes
other three
of
under
Revolution,
American
colo-
the
Prior to
the
the medical model. Under
medical
with
fashioned
nial
sentences
courts
model, sentencing
were
responsibilities
di-
punish
in mind: to
purposes
three basic
the
court and the
vided between
crime,
satis-
thereby
his
the offender
imposed
Parole Board.3 District courts
society’s desire for
retribution
fying
that were
indeterminate sentences
moni-
from
(“punishment”);
to deter others
Board, meaning
a Parole
by
tored
that a
by demon-
committing the same crime
impose
judge would
a sentence
had a
conse-
disadvantageous
its
strating
term of
and a
minimum
confinement
maxi-
deterrence”); and to
quences (“general
confinement,
mum term of
but “allowfed
wrongdoer,
pro-
to
the
so as
incapacitate
possibility
the
of release sometime
for]
activi-
society from further criminal
terms[,
tect
expiration
the
of those
between
ty
“incapaci-
or
the date and conditions of release
(“specific
with]
deterrence”
the maximum term” determined
tation”).
before
Parole
Campbell, supra,
the
Board.4
1204,
Scroggins,
v.
United States
§ 4:2.
Cir.1989).
(11th
1800s, peno-
1206
In the
District courts fashioned the minimum
became
with
logical experts
“dissatisfied
maximum
bounds of
in-
prisons
the failure of
to rehabilitate
traditional pur
accordance
the four
mates,”
a fourth
and rehabilitation became
sentencing. They
of
could consider
poses
Arthur
sentencing.
basic
of
See
purpose
they thought
all facts
were relevant
to
Sentencing
Law
1:2
Campbell,
W.
The
purposes, “conducting]
inquiry
these
(2009).
em-
The American tradition thus
scope, largely
unlimited either as
broad
sentencing pun-
purposes
four
braced
—
kind of
... or
to the
information
deterrence,
ishment,
de-
general
specific
come.”
from which it
Unit
[could]
source
rehabilitation;2
terrence,
tradition
Tucker,
443, 446,
this
v.
404 U.S.
92
ed States
(1972).5
591,
589,
L.Ed.2d 592
present day.
has
30
continued
S.Ct.
Thus,
437,
Brown,
parole.
[was]
v.
U.S.
rehabilitation
domi
2. See United States
1707,
model;
458,
1720,
punishment,
goal
of the
14 L.Ed.2d
nant
medical
85 S.Ct.
deterrence,
(1965).
general
incapacitation [were]
only incidentally
achieved
to the offender's
United
v.
rehabilitative incarceration.”
States
system
Board of
3. The
started with the U.S.
1204,
(11th
Scroggins, 880
redesignated
F.2d
Cir.
U.S. Parole
It was
Parole.
model,
1989).
more
see
For
on the
id. at
the Parole Commission and
Commission
1976,
(detailing
variety
1207 n. 7
Reorganization Act of
Pub.L. No. 94-
court).
219,
(1976).
options available to the district
90 Stat.
For
convenience,
I refer to the Parole Commis
example,
the Parole Board.
sion as
could consider
5. For
in which
offender committed the
manner
crime,
which included
circumstances
the offend-
"monitor[ed]
Parole Board
aggravated
mitigated
the offender’s crimi-
progress. When it de-
er's
rehabilitative
blameworthiness,
fully
because
manner
rehabili-
nal
[was]
that the offender
cided!]
tated,
punishment.
purpose
on
was relevant
releasefd]
the board
the offender
array
on
they
appeals,
Because
could consider broad
courts
the other
hand,
virtually
role
facts,
had
no
under
medi
“wide discretion in
enjoyed
long
cal model. So
as the sentence was
determining
impose.”
what sentence to
limits,
“was,
statutory
within
for all
Id.6
practical
purposes,
ap
not reviewable
Although
court set
the district
States,
peal.”
Koon United
U.S.
sentence,
bounds
Parole Board
2035, 2045,
dict 1970s, how the offender would need for By the the medical model was rehabilitation, driving the model’s factor— falling Congress out of favor.9 had come powerful the Parole reject Board was actor in to prem- the medical model’s core the medical model. ise—that prison sentences rehabili- could Likewise, able, aspects it they could of the consider de- dividuals as soon as without background being fendant’s were because rele- full confined term of sen- specific
vant
imposed’’).
deterrence and
tence
rehabilitation.
States,
SRA,
6. See also
v. United
Wasman
468 U.S.
Prior
Fed.R.Crim.P.
al-
563,
559,
3217, 3220,
illegal
S.Ct.
82 L.Ed.2d
lowed the “court to correct an
sen-
(“It
(1984)
illegal
is now well
that a
tence
established
time.” An
sentence was
judge
sentencing authority
or other
is to be
not “within the limitations set
in the
forth
very
determining
imposed.”
accorded
wide discretion in
statute
under which
[was]
sentence.’’).
States,
424, 431,
appropriate
Dorszynski
an
v. United
418 U.S.
3042, 3047,
(1974).
94 S.Ct.
Every
had an
sentence
offense- and an
gaged regardless of the charges for
component.
offender-based
United States
(“real
which he was indicted or convicted
(11th
Mogel,
F.2d
Cir.
1992);
994(b)
sentencing),
offense”
upon
or
the con-
see 28
(instructing
U.S.C.
Commission
that the
duct that
“establish a sentenc
constitutes the elements of the
ing range”
category
for “each
of offense
offense for which the defendant was
term,
prisoner
serving
impris-
a
a
year
subject
who
term of
the first
of the
to deter-
year
that,
onment of more than 1
other than a
mination
the
of
Bureau
Prisons
imprisonment
term of
for
duration of
during
year,
prisoner
displayed
has
life,
prisoner's
may
receive credit to-
compliance
exemplary
with institutional
sentence,
prisoner's
ward the service of the
disciplinary regulations.
served,
beyond
up
days
the time
of
to 54
Hence,
imposed
offenders served the sentence
year
prisoner's
the end of each
of the
term
good
less
time.
imprisonment, beginning
of
at the end of
committing
offender’s real conduct
was convicted
of which he
charged and
adjustments ap-
offense of conviction. The
sentencing).
(“charge offense”
their
regardless
all offenses
plied to
(initial policy
state-
1A1.1
U.S.S.G.
adjust-
but not all
category. Some
ment).14
charged
offense.
Id.
ments related
devising
hybrid approach,
It settled
a
at 1209-10.18
components:
with three
an offense level
(2)
(1)
level,”
“specific of-
a “base offense
b. The Offender Characteristics
(3)
characteristics,”
“adjust-
fense
category
The
of offender was the Com-
2. The District Court’s Role guideline, the court impose an [had to] Statutory a. The Considerations sentence, appropriate having regard due for the purposes set forth in subsection SRA tasked the district with courts (a)(2)” four purposes traditional —the sentencing individual offenders in accor- sentencing. Id. also had to but, statutory factors, dance several prescribed by guide- consider “sentences time, at the same eliminated most of the lines applicable to similar offenses and of- carrying district court’s discretion in out applicable policy fenders” and “the state- cases, nearly that task. In all the court’s ments of ministerial, Sentencing job Commission.” Id. to follow the Commis- sion’s instructions. played The scheme obligated Because the district court was out way. this to follow the Guidelines all but cases, required
The district rarest courts were to sen- district court fol- tence pursuant parsimony to U.S.C. 3553. Sec- lowed the principle to the ex- tion directed the courts to tailor tent that creating the Commission did in context, ed.1999). focusing, so ignored Commission parsimony In this trans- Congress (the suggest- using number of factors that had lates to the least harsh sentence means) satisfy ed and the Commission pur- had conceded were needed traditional (the end). predicting poses relevant Although recidivism. See *67 Ch.4, Pt.A, (recogniz- quibbles U.S.S.G. intr. comment court "parsimony with the label ing "empirical principle,” disagree research has that shown it does not the with un- highly derlying concept. other factors are correlated with the recidivism, e.g., age drug likelihood of and sentence, abuse, fashioning In 22. the district policy [but] for not reasons were factors, courts were to take time”). account of other included here at this Other factors (1) education, including: the nature and circumstances disregarded included vocational history skills, record, and the offense and characteris- employment family ties and (he offender, (2) tics of 994(d). the kinds of responsibilities. § sentences See 28 U.S.C. available, (3) guidelines the Commission's statements, "Parsimony” “economy (4) 21. policy is defined as the need avoid un- (5) the disparity, pro- use means an end.” Merriam-Web- warranted the need to (10th 3553(a). Collegiate Dictionary § ster's vide restitution. 18 U.S.C. guidelines applicable to the of- the tified the instructed Congress the Guidelines. conviction, recited the facts relat- guide- fense of sentencing to establish Commission 3553(a)(2) level, specific the purposes, § ed to the base offense the to meet lines adjustments, princi- characteristics and parsimony the offense did not mention 3553(a). level, and, § See 28 the offense after determined appears ple 991(b)(1)(A).23 history, It is thus criminal reciting § the defendant’s U.S.C. into account criminal histo- took the defendant’s that the Guidelines determined clear way they principle, category. specified and the The PSI then ry parsimony created tension with for the offense and the frequently sentencing range operated available. See 18 parsimony principle. kinds of sentences 3552; 32(c)-(d); § Fed.R.Crim.P. U.S.C. sum, dis- Congress instructed while F.2d at 1209 & n. 11. After Scroggins, 3553(a)(2) judges to consider trict objections to the considering parties’ ensure uni- judges purposes, district —to factual recitations and Guidelines de- PSI’s impose always had to formity —almost terminations, officer probation summa- only conduct- They sentences. Guidelines objections in an ad- any rized unresolved analysis independent an ed Scroggins, F.2d dendum to the PSI. 3553(a)(2) princi- parsimony purposes “serve[d] at 1209 & n. 11. The PSI thus aggravating in the rare event ple in a pretrial stipulation of a purpose no existed or circumstances mitigating The addendum framed civil case.” Id. guideline applied. sentencing at the litigated the issues to be hearing. Sentencing Proceeding The b. sentencing hearing followed. The SRA, fash- district courts
Under There, any re- the district court resolved adversary pro- using ioned sentences regarding legal factual and issues maining between the cess, “a confrontation in which of the Guidelines. application the correct that which similar to parties [occurred] 1209, 1211 & n. Scroggins, F.2d at See a civil bench trial.” United occurs at Determining the circumstances of the Scroggins, 880 F.2d States v. history criminal (11th Cir.1989). offense and the offender’s process began the correct questions; factual presented conducted investigation pretrial of the Guidelines to those application officer and the issuance probation court’s questions. After presented facts24 mixed report presentence investigation (“PSI”). the district court hearing parties, from the at 1209 n. 11. The PSI iden- Id. record, (in cases) 3553(a) ("The as a matter of Compare most 18 U.S.C. sufficient, impose responsible making but not judge a sentence shall necessary, comply with the greater than specific findings related to offense character- (2) purposes paragraph of this set forth adjustments. government bore istics and ("The 991(b) subsection.”) with 28 U.S.C. preponderance proving by a the burden of Sentencing States purposes of the United any specific offense characteris- the evidence (1) establish Commission are to (not jury adjustments established via tics and practices Federal criminal policies and for the guilty plea) enhance the that would verdict or (A) meeting system justice assure level, facts that offense defendant's purposes of as set forth support of the defendant’s would an increase 3553(a)(2).”). U.S.C. [18 ] section category The defendant bore the of offender. *68 regarding adjustments that same burden guilty jury the conviction or the 24. Because category the reduce the offense level or would charged plea the offense conduct established Wilson, v. 884 F.2d level) offender. United States (the and the defendant's base offense 1355, Cir.1989). (11th 1356 history have been established criminal would
1234 Appeal’s court 3. The open announced and the Court of Role “state[d] imposition particular reasons for its of the Lastly, Congress the tasked courts 3553(c). § sentence.” U.S.C. If the 18 system by the appeals policing creat- imposed court a within-Guidelines sentence ing grounds appeal. for substantive In range 24 and the Guidelines exceeded right appeal an “illegal” addition to months, had to also “the sentence, the court state which existed had under the par- model, a sentence imposing reasons for Congress medical created three see point range.” grounds appeal, ticular within the Id. new for 18 U.S.C. 3742, 3553(c)(1). § to the district § that assure that court In the rare event the correctly applied the Guidelines. The first kind, court the imposed a sentence “not of grounds that of these was the sentence range,” or ... it [Guidelines] outside application” was the result of an “incorrect had doing to state its reasons for so with 3742(a)(2), § the Guidelines. Id. specificity in written order. Id. (b)(2).26 The second was the sentence 3553(c)(2). than “greater” was or “less” the Guidelines sentence, imposition Following its of the 3742(a)(3), sentencing Id. range. give parties district court had to (b)(3).27 The third was the sentence fact, object chance to findings to its its imposed was for an for offense which no applications legal Guidelines or other rul guideline existed “plainly and was unrea- ings, or the manner in which the sentence 3742(a)(4), (b)(4).28 sonable.” Id. Jones, imposed. United States v. 899 (11th 1097, Cir.1990), F.2d 1102 overruled grounds by on other v. United States Mor sum, structurally the SRA divided (11th Cir.1993) (en
rill,
was
it contained “critical
often determined
facts established
cause
cross-refer-
3553(b).
260-61,
§to
Id. at
ences”
125
by
by
preponder-
the district
a mere
gap,
S.Ct.
765. To fill the
the Court
evidence,
mandatory
ance of
“impli[ed]”
held that
the statute
that sen-
Guidelines violated the Sixth Amendment.
should be
“review[ed]
tences
‘unreason-
244,
749-50,
232-34,
Id. at
Rodriguez, 406 responsibility primary Because the Cir.2005) sentencing post lies with the J., dissenting the -Booker dis- from (Tjoflat, courts, I what explain fashioning trict banc). Thus, rehearing en denial of 3553(a) § in with in- sentence accordance 3553(a), parsimony the which embodies volves, sentencing hearing how the should purposes traditional principle and the four conducted, explanation the the be and dis- forefront, pro- sentencing, moved courts for the give trict must sentences of a viding the for the construction bases they impose. Only then can the abuse of appeals the The courts of bore sentence. review appellate discretion standard of be the reviewing responsibility meaningfully discussed. sentences, the under abuse of courts’ of review. Such re- discretion standard B. The Key Inquiry view, preserve would some thought, 3553(a) sets out seven Section factors
that a district court must “consider” before imposing a At the end of sentence.34 the yet category, incorpo- such have to be to make individualized amendments it had by Sentencing rated Commission the into determination. 994(p) amendments issued under section 3553(a) provides: 28); 34. 18 U.S.C. of title and that, (ii) except provided as in section (a) imposing considered in Factors to be 3742(g), are in effect on the date the impose court shall a sen- sentence.—The sentenced; or defendant is sufficient, greater tence but not than neces- (B) probation in a violation of the case of sary, purposes comply with the forth to set release, supervised applicable the or (2) paragraph in of this subsection. guidelines policy by or statements issued court, determining particular the sen- pursuant Sentencing the Commission to imposed, consider— tence be shall to 994(a)(3) United section of title States (1) the nature and circumstances of the of- Code, any taking into account amend- history fense the and characteristics of guidelines policy ments made to such defendant; the (regardless by Congress act of statements (2) imposed— the need for the sentence yet have whether such amendments to (A) to reflect the seriousness of the of- incorporated Sentencing by law, the Com- fense, respect promote for the to mission issued into amendments under provide just punishment to for the of- 28); 994(p) fense; section of title (5) any pertinent (B) policy statement— adequate afford deterrence to to (A) conduct; Sentencing by issued Commission criminal 994(a)(2) (C) pursuant of title to section protect public to from further Code, defendant; subject any to United States crimes of the (D) policy provide made to such state- the defendant with needed amendments by (regardless training, Congress ment or vocational medi- act of educational care, yet whether cal correctional such amendments have to be or other treatment manner; Sentencing incorporated by Commis- the most effective (3) available; sion into issued under the kinds of sentences amendments sec- (4) 28); 994(p) and the tion of title kinds of sentence sentenc- that, (B) provided ing except range for— section established (A) category 3742(g), applicable in effect on the date defen- of offense by applicable category dant is committed sentenced. (6) guidelines— unwarranted sentence set forth in the need to avoid defendant as (i) Sentencing disparities among with defendants similar issued Commission 994(a)(1) guilty of pursuant records found simi- to section of title who been Code, conduct; subject any lar United States (7) guidelines provide restitution amendments made to such need to (regardless of victims of Congress act whether the offense. however, day, requires the statute ment of dis- the seriousness of the offense and sufficient, trict “impose court to its relative the community. incidence 3553(a)(2)(C) greater necessary, but not than comply Section asks what sentence is set purposes paragraph public forth needed to “protect from further (2).” 3553(a). Thus, although 18 U.S.C. crimes of the defendant.” The basic task all of the predict factors identified in is to the likelihood that the offend- *72 considered, offenses, § must be the heart of er will commit further assess the inquiry potential offenses, is the district court’s of assess- seriousness those and ment of traditional purposes incapacitate the four determine the to need the of- 3553(a)(2) sentencing § has codified. fender as a prophylactic Finally, measure. 3553(a)(2)(D) § on focuses the need for the § 3553(a)(2)(A), The first purpose, re- sentence to rehabilitate the offender —“to “sufficient, quires be sentence but not provide ... needed educational or voca- greater necessary” than to satisfy the need care, tional training, medical or other cor- 3553(a)(2)(A) punishment. for Section ac- rectional treatment the most effective tually inquiries involves three that exist in Ordinarily, manner.” rehabilitation will dynamic a relationship: the sentence must play no in determining role the sentence. offense, “reflect the seriousness of the See 18 U.S.C. 3582(a).36 Jpromote law, for respect [ pro- ] and [ just punishment vide blush, for the At offense.”35 first it seems odd that Con- 3553(a)(2)(B) Section gress focuses on the required need consideration of seven fac- general for deterrence —“the need for the tors but ultimately directed the district imposed ... to afford adequate impose courts to sentences sufficient but deterrence to criminal greater conduct.” The not necessary need than comply for general 3553(a)(2). just deterrence involves an assess- one: On further exami- motivation) easily Seriousness of offense may under- offender's pun- call for less respect ishment, Promoting stood. for the rule of law imposing and a sentence without punishment; turns on perception of the re- taking account of those may circumstances spect may for the of the compro- rule law be engender disrespect for the rule of law. community mised if the or offender believes punishment “[Ijmprisonment an offender's appropriate was too harsh is not an or lenient promoting based on facts of the case or if means of correction and rehabili leads to sentencing disparity. 3582(a); unwarranted tation.” 18 U.S.C. see also United punishment Shortt, Just takes into account the (4th of- States v. Cir. culpability. fender's 2007) relevant, ("Although still the fourth rehabilitation, purpose, recognized by was (a)(2)(A) Evidence will be relevant to the Congress Sentencing and the Commission to inquiry any to the extent it is relevant to insufficient, own, standing be on its justify inquiries. of these Importantly, the first and sentence.”). particular Rehabilitation is inquiries specific third to "the offense." relevant, however, clearly Moreover, when the "offense” is the offense of con- probation viction; offender to a supervised term of or inquiries, on therefore these the dis- See, 98-225, e.g., S.Rep. release. No. trict consider cannot conduct that does ("Rehabilitation conviction, particularly important bear on the offense of such as uncharged formulating consideration in unproven or conduct. conditions for Sometimes, persons placed probation.”). all three factors militate All of the in fa- (a)(2) strong punishment: vor of a determining need for factors are relevant to for example, punishment probation may just supervised severe conditions of for re offense, probation supervised serious impose failure to release can lease— certainly punishment engender such could disrespect punitive aspects, and deterrent Sometimes, for the rule example. simplicity, of law. for though, factors For I limit will although my be in opinion tension: a serious imprison offense discussion in this committed, (such circumstances component as the ment of sentences. however, all of a sentence that the four nation, apparent impose it is satisfies purposes traditional analysis of the inform the the other factors 3553(a)(2). most, cases, if not all one sentencing. Section four purposes If, will purposes drive the sentence. 3553(a)(1) “the requires consideration of punishment example, for should the offense circumstances of nature and out is than sufficient to be meted more history characteristics general specific meet the needs are di- These considerations defendant.” deterrence, punishment then the need all four rectly purposes. Sec- relevant will “drive” the sentence. If the need 3553(a)(3) requires tion consideration (say general deterrence is at the forefront available,” which is of sentences “kinds case) in a tax evasion and the defendant is any determination of what sen- crucial to offender, will be first-time the sentence necessary tence be no harsher than would satisfy imposed general need for *73 (5) 3553(a)(4), punish to or deter. Sections is, imprison- deterrence —’that the term of (6) of the Guide- require consideration purpose greater for that than the ment is sentencing range, lines the Commission’s period required pun- of incarceration for statements, and to avoid policy the need specific ishment or Alterna- deterrence. disparity, respectively. unwarranted .Un- tively, repeat consider the of a offend- case sentencing disparity dis- breeds warranted string er with a of that harmed convictions law respect for the rule of in contravention scores of victims. The of incarcera- period (whose 3553(a)(2)(A) is, § in purpose required protect public tion to the from his law”), réspect the part, “promote to criminal the may future behavior exceed correctly and a calculated Guidelines sen- imprisonment for punish- term needed (which part is in tencing range calculated deterrence, general specific ment and policy by considering the Commission’s deterrence will drive the sentence.37 statements) avoiding is one tool for such 3553(a)(7)’s Finally, § com- disparity. Preparing Sentencing C. For the to mand that the court consider the need Hearing directly to victims is provide restitution I.B, in explain part supra, As I a district just punishment. to relevant might not find what judge the answer to My after the transpires take on what parsimonious would constitute sentence 3553(a) § district court considers the seven the the by consulting Guidelines because the should Commission was not instructed to take factors is that district court punishment otherwise, one would say I that a sentence is often driven the sentence — (a)(2) reading purposes my long sufficiently satisfy of the because of to the need for not statutory language plain of the punishment. that a must be Given the direction sentence sentence, handing down the the district greater necessary not than to sufficient but explain driving purpose judge why must 3553(a)(2) logi- comply purposes, with is, purposes the other the sen- subsumes —-that cally that a sentence should not be follows necessary driving purpose satisfy tence (a)(2) greater necessary satisfy the than is satisfy also sufficient to all of the other is longest purpose that demands the sentence. (a)(2) (a)(2) purposes, purposes. All of the hand, (a)(2) pur- weighing On the other therefore, considered, properly and the poses logi- against other each does not follow "driving pur- court’s characterization of the no cally the statute —even if there is from "speeding] flattening] pose” as ahead and deterrence, example, the specific need for three” is Ante at 1197 the other inaccurate. satisfy the sentence must still be sufficient to explanation (a)(2) enhances mean- n. 24. This also purpose. driving purpose If driving public percep- ingful appellate review punishment, play the and the is a district court cannot justice specific has been done. lack a need for deterrence off tion principle parties’ account The in- parsimony into when needs par- When the fashioning the Guidelines. put parsimonious to fashion a sentence. about disagree parsi- ties what would be adversary is an hearing sentence, is of monious the PSI limited use parties proceeding39 which the frame the As the Supreme the district court. controversy by requesting sentences that Gall, Court the PSI anticipated does 3553(a)’s will meet parsimo- believe question answer which four ny requirement.40 the court en- After has 3553(a)(2) purposes the Guidelines sen- parties’ argu- tertained the evidence and accommodates; tencing range primarily support requests, ments in of their nor does it recommend a sentence that district court whether determines either sufficient, greater would be but not than request supported sentence necessary purposes.38 achieve those factors. Id. 49-50, U.S. at 596. The S.Ct. at PSI obligations placed Gall has on the simply informs the district court of the prosecutor and present defense counsel to that, range of sentences Commis- requests view, to the district court sion’s should be considered cases consistent with their offense and offender characteristics adversarial roles similar to the case before the court. prosecutor ease.41 The must urge *74 process 38. The PSI is the sentencing current format same one role in the under the by probation Principles up- used the district courts’ offices Guidelines. The have not been pre-Booker. changes dated to reflect the Booker and Gall prosecutor's obligations. to made the indicate, Principles prosecutor As the the con- States, 338, 351, 39. Rita v. United. 551 U.S. sentencing presenting siders when the to case 2456, 2465, (2007) L.Ed.2d 203 grand jury Presumably the for indictment. (‘TT]he sentencing subjects the defen- recommendation, acting prosecutor's the on thorough dant’s sentence to the adversarial grand jury the indicts the defendant the for testing contemplated by sentencing federal "the most serious offense is consistent procedure.”). conduct, with nature of the the defendant’s likely and that is to in a result sustainable prosecutor 40. This assumes that the and de- § ("Selecting Id. conviction.” 9-27.300 properly representing fense are counsel their Offenses”). Charges Charging Most Serious — clients, respective as indicated in the follow- "The ‘most serious' offense” is "that which ing Although may they agree, text. times yields highest range sentencing the the under prosecutor generally argue the will a for guidelines.” Id. sentence, harsher and defense counsel for a presented initially If the offense the to prosecutor more lenient sentence. If the and grand jury fully does not embrace the nature prepared defense counsel are not to advance involved, and of the extent conduct criminal positions, ought their the district court to prosecutor the should recommend that the sentencing hearing continue the and recon- grand jury's charges indictment include parties vene the prepared. it when are prosecutor so. would do should seek charges additional when They obligations early assumed these in necessary 1. Are to ensure that ... the prosecutor's obligations the case. The are indictment: expressed Principles the Federal Prose- Adequately a. the nature ex- reflects and ("Principles”), Attorneys’ cution States United involved; the tent of criminal conduct Manual, (1997), § http: 9-27.000 available at and //www.justice.gov/usao/eousa/foia_reading_ appropriate b. Provides the for an basis room/usam/index.html, defense the counsel’s under sentence all the circumstances in the Sixth Amendment. case; the Principles originally promulgated significantly strength were 2. Will enhance the Attorney July General government's against 1980 and of the case the defen- updated prosecutor's were describe dant or codefendant. to the district court advance of “appro- present that is impose court to civil bench trial. In their circumstances of ... under all the priate memoranda, Justice, parties should consider United Dep’t U.S. the case.” Manual, findings § the district court with presenting 9-27.820 Attorneys’ States fact and conclusions of law similar to (1997), http://www.justice.gov/ available at of fact conclusions of law fusao/eousa/ffoia_reading_room/usam/ findings end, present in a the court prosecutor parties civil case To this index.html. following a trial. The prior that the relevant to or bench must endeavor to “ensure the Guidelines court’s attention memoranda would indicate brought to the facts party § the sentence the sentencing range,42 9-27.710 fully accurately.” Id. 3553(a)(2)purpose requests, primary (“Participation Sentencing Generally”). — serve, why the presenta- factual the sentence is to “mak[ing] includes This sufficient, great- necessary ... sentence would be the court when is [i]t tion to [PSI]; necessary comply than er [i]t or correct supplement 3553(a)(2) presenta- purposes.43 defense necessary light of the court; requested by or [i]t tion formulating requests, their sentence (“Establishing court.” Id. 9-27.720 parties should first evaluate how well Sentence”). Finally, the Factual Basis for in the guidelines listed PSI serve as prepared to sub- must prosecutor “[b]e 3553(a)(2)’s proxies purposes. As allegations factual dis- significant stantiate explained, the Guidelines offense level for defense.” Id. Defense coun- puted by the up made the offense conviction is obligation prepare has an sel also level, specific offense charac- base offense fact, hearing; the Sixth teristics, adjustments. Some of the counsel requires that defense Amendment adjust- offense specific characteristics with effective assis- provide the defendant may ments describe acts committed of the case. This would phases tance in all in perpetrating the offense of defendant *75 the district court with providing include conviction; the treats such Commission as the favorable to the defendant evidence part of the “real” offense conduct acts as 3553(a)(2)’s sentencing § court considers properly and includes them the offense objectives. 3553(a)(2)(A)(B) § proxies for the level punishment general needs for and deter- present should their sen- parties The specific rence. Other offense characteris- requests to the district court after tence PSI, adjustments, however, may PSI, to the tics and not the and addendums on fairly any bearing be said to have the ready are in final form and for submission Ideally, defendant’s commission of the offense requests to the court. the should (A) (B) and thus on the and in advance of the sen- conviction presented be well Therefore, the although memoranda needs. Commis- tencing hearing sentencing (A) (B) for and parties routinely proxies sion treats them as pretrial akin to the briefs ("Additional post- Charges”). include information because § tant to this Id. 9-27.320 Booker, may longer uncritically the court no range sentencing out in the 42. This is the set responsi- apply counsel's the Guidelines—it is or, party objects the PSI Guide- PSI if the to § bility explain the fac- to how all of calculation, calculation lines the Guidelines case, given implicated in a with an tors are sentencing range party will the and the ask (a)(2). emphasis on N. Dist. Cal. Fed. Pub. sentencing hear- district court to reach at the Defender, Memorandum, Sentencing Model ing. http://www.ndcalfpd.org/Briefbank/Booker/ 20McColgin% 20Sentenc- David% 20Model% California Federal 43. The Northern District of (last ing% visited sample sentencing 204.25.05.htm provides a 20Memo% Public Defender 30, 2010). impor- explains that that it is June memorandum in determining the Commission considered purposes, they may be irrelevant to wheth- offenses)46 the that party proposes categories er the sentence a is suffi- render so, cient, atypical. the the greater necessary doing than instant case (A) (B) satisfy party of- positing the needs the case.44 would be substitute determining using support fense level it the Accordingly, proxies the (A) (B), may asking sentence it will the court urge the defendant the be impose. the PSI’s offense remove from specific level offense characteristics sentencing will parties’ memoranda adjustments reflect conduct that unre- prescribed also address the criminal histo lated to conviction.45 the offense of which, ry category, coupled with the of may level, The offense not fit the circum- fense would inform the level even stances of the case after irrelevant court’s discretion. If the crimi I, nal indicated, history category considerations are removed. As and the govern level ment applies category Guidelines offense to all does not contend conviction; cases involving ground the offense should be increased it is, speak it unique “substantially under-represents does not the seri particular history circumstances of a case. Conse- ousness of the defendant’s criminal quently, memorandum, in its or the likelihood defendant will crimes,” party may urge court to commit deviate from other U.S.S.G. 4A1.3(a)(1), § the prescribed offense level to take into the defendant’s sentence will account one or more the offense charac- solely by driven offense level for 994(c) (which is, § teristics listed in U.S.C. offense of conviction —that the sentence example, 44. 2-point upward government oppose For is a there will the defen- adjustment probation lying to the officer request specific dant's if believes that PSI, compiling who is U.S.S.G. 3C1.1 & adjustment offense do characteristics n.4(h), usually cmt. but that conduct has noth- bear on the offense conviction. ing charged to do with the offense. The adjust- Guidelines littered manual 994(c), Congress specified In 28 U.S.C. specific ments and offense characteristics that following offense factors: 3553(a)(2) may may not be relevant to case, (1) offense; given grade performed even if the offender 3B1.5, (2) question. the conduct in U.S.S.G. the circumstances under which the of- *76 example, adjusts upward the offense level mitigate ag- fense which was committed body during if the drug offender used armor offense; gravate the of the seriousness offense, body during but the use of armor (3) degree the nature of the harm simple drug transaction which the offender offense, by including caused the it whether anticipate might does not violence have irreplaceable property, involved property, 3553(a)(2) bearing § purposes. no on the person, persons, a number of or a breach examples potentially Other irrelevant ad- trust; public justments (hate § include: U.S.S.G. 3A1.1 (4) community view gravity the of the motivation); (whether § crime 3A1.2 the vic- offense; the official); government § tim awas 3A1.3 (5) public generated by the concern of- the (whether during the victim was restrained the fense; offense); (whether § 3B1.3 the offender (6) particular the deterrent effect a sen- position special abused a trust or used a may tence on the the commission of skill); (whether § 3B1.4 the offender used a others; offense crime); (wheth- § minor to commit the 3C1.2 (7) the of the current incidence offense recklessly endangered er the people offender community the and in the Nation as (whether during flight); § 3Cl.3 the offender whole. was on ted). the release when crime was commit-
1243
im
satisfy
punish- perception
the need for
whether the sentence
necessary to
Gall,
fair or
552
at
posed
will be more
is
not.
U.S.
general
ment or
deterrence
fair,
at 597. To ensure that it
enough
satisfy any
specif-
need for
128 S.Ct.
than
such,
perceived
and thus
as
the sentence
ic deterrence.
subjected
“thorough
must be
to the
adver
history
criminal
cate-
If the defendant’s
testing contemplated by
sarial
the federal
I,
may
greater
parties
than
gory is
sentencing procedure,” Rita v. United
punish-
whether the defendant’s
dispute
States,
338, 352,
127
551 U.S.
S.Ct.
should
for the offense of conviction
ment
(2007),
L.Ed.2d
and the rea
past
of his
criminal
greater
on account
imposition
explained,
sons for its
must be
3553(a)(2)(A),or,
behavior,
see U.S.C.
(“Confidence
356, 127
id. at
S.Ct.
not,
fu-
predicts
if
whether such behavior
judge’s
in a
use
reason
underlies the
criminality and thus warrants an addi-
ture
public’s
judicial
trust in the
institution. A
protect
of incarceration to
period
tional
public
judges’s]
statement of [the
reasons
3553(a)(2)(C). Regarding
public, see id.
particular
imposed]
sentence
helps
[for
latter,
parties may point to factors
provide
public
with the
assurance
on the defendant’s likelihood to
that bear
trust.”). Moreover,
creates
but that the Commission did
recidivate
judge’s statement of reasons
“allow[s]
reasons,
policy
into account for
such
take
Gall,
meaningful appellate review.”
end,
abuse.47 In the
each
age
drug
39, 128
U.S. at
S.Ct. at 590.
history
will arrive at a criminal
cate-
party
which,
process
level
The adversarial
gory,
coupled
Supreme
the offense
presumably support
steps.
will
the Court mandates involves five
After
proposes,
it
order,
requesting
listing
the district court
them in
I
them in
sentence
address
what
impose.
might
some detail to indicate
take
place
typical
parties
in a
case in which the
Proceeding
D. The District Court
agree that
cannot
the Guidelines sentenc-
ing range
correctly approximates
hearing
is framed
The
3553(a)(2)
First,
purposes.
the district
as ex-
competing positions
parties,
sentenc-
determines
Guidelines
memoranda.
pressed
their
597;
range.
Id. at
ing
severe
government
seeks
most
3553(a);
U.S.C.
Fed.R.Crim.P.
32.48
the facts and circumstances of
Second, turning
prosecutor
then to
ease will allow. The defendant seeks
counsel,
leniency.
parties
manner in which the dis- defense
the court asks the
requests and
sentencing hearing
trict court conducts the
for their sentence
affords
opportunity
present
evidence
parties’
public’s
is relevant to the
and the
them
(5)
condition, including
Although
physical
drug
crimi-
de-
the Commission settled on
history
pendence;
nal
as the
measure of offender
*77
record;
Guidelines,
(6) previous employment
Congress
characteristics in the
(7)
994(d)
family
responsibilities;
§
ties and
in 28 U.S.C.
a number of other
listed
ties;
(8) community
the
offender
characteristics
Commission
offense;
(9) role in the
devising
could consider in
the Guidelines:
(10)
history;
criminal
(1) age;
(11) degree
dependence upon
criminal
education;
(2)
activity for a livelihood.
skills;
(3) vocational
(4)
a matter
and to
mental and emotional condition to the
48. "As
of administration
se-
mitigates
consistency, the
extent
such condition
the de-
cure nationwide
Guidelines
Gall,
starting point.”
culpability
be the
552 U.S.
fendant’s
or to the extent
should
relevant;
plainly
relevant to each of the four
support
request-
evidence to
their
Gall,
sentences,
49-50,
purposes.
ed
and this
U.S.
evidence will often
Third,
why
show
the
at 596-97.49
the court
Guidelines recommendation
S.Ct.
enter-
appropriate
is or is not
given
case.51
parties’ arguments
tains the
support
party might
A
challenge the offense level
Fourth,
their
requests.
sentence
Id.
by
the court has
contending
set
that the
court determines whether the sentence ei-
generalized
Commission’s
treatment of the
party proposes
ther
satisfies each of
example,
weights
offense—for
accord-
3553(a)(2)’s
§
purposes
parsimony
and the
ed to
characteristics
the base offense
Fifth,
principle.
Id.
the court fashions a
specific
level or
offense characteristics —is
sufficient,
greater
that is
but not
inappropriate in
present
case.52 Aside
than necessary to meet
those purposes,
from relying on the circumstances that
this,
explains how the sentence does
and if
“mitigate or aggravate the seriousness of
the sentence
from
deviates
the Guidelines
offense,”
party
might proffer evi-
range
parties’ requests,
or the
gives the
dence concerning
“community
view of
reasons for the deviation. Id.
gravity
offense,”
of the
or “the current
step
first
hearing
incidence of the offense in
community.”
is to determine whether
the Guidelines
evidence,
contend,
This
the party would
sentencing range
by
fixed
the PSI is cor-
3553(a)(2)(A)(B)
relevant to the
inquiry
rectly
By “correctly
calculated.50
calculat-
regarding the needs
punishment
ed,” I
per
mean calculated
the instructions
general
Or,
party
deterrence.
might
in the Guidelines
stage,
manual. At this
challenge
history
the criminal
category the
the court
will resolve
disputes regard-
has set
proffering evidence on
ing whether the manual’s instructions were
gender,
characteristics such as
race and
properly followed.
ethnicity,
status,
employment
educational
In the
step,
second
the district court will
attainment, and marital status that
entertain the parties’ sentencing requests. Commission did not
consider
establish-
government
and then the
ing
defense will
the categories of offenders.53
already
49. The record would
regardless.”
contain the evi-
Id. at
of discretion standard.
at
depends,
551 U.S.
discretion has been abused
of
(“
course, on
351,
the bounds of that discretion
‘[Reasonableness’
S.Ct.
principles
guide
and the
its exercise.”
merely
review
asks whether the trial court
326, 336,
v. Taylor,
United States
487 U.S.
Gall,
discretion.”);
abused its
findings review, survive clear error the purposes, was not inconsistent with the question becomes whether the court erred 3553(a) remaining factors, § and satisfied in applying the Guidelines to the If facts. the statute’s parsimony requirement. If in doing so the court made an “identifiable the court engage process, failed to in this legal mistake” in interpreting the Guide- it abused its (by discretion misinterpreting lines or if it “clear[ly] in applying err[ed]” law) and the sentence must be vacated. them, the court abused its discretion and the sentence must be vacated and the case Step required five the district court to White, remanded. See United States v. select and explain a sentence supported by (11th Cir.2003). 1317-19 3553(a)’s § and, moreover, factors a sen- two,
At step “sufficient, the district court was re- tence greater but not than nec- quired give 3553(a)(2)’s government, essary” § then to meet objectives. Klay, stitutes an abuse step-by-slep of discretion. 67. The appellate review I de- text, posit F.3d at 1251. In the case I application scribe includes of the harmless appellant challenges the district especially court's error doctrine. In most cases— ruling steps sentencing pro- in all five dispute mine run cases where the centers on steps process cess. Because these reflect the sentencing range where within the Guidelines law, required by failing to follow imposed them the sentence should have been —the demonstrates that the district court abused its review will steps focus on fewer than the five by misunderstanding discretion the law. fashioning the district court took in the sen- tence. assuming challenges I am that these were presented to the district court in the government form of 68. Because the initiated the objections preserved appeal and were proceeding, criminal it has the burden of first accordance with going United States v. Jones. proposal. forward with its 3553(a) from the Guide- fashion If the sentence deviated case, the parsimony principle. accordance with range for the lines (“The sentencing judge See id. for the had to set forth the reasons court superior position judge to find facts and question the court of The first deviation. import their under the indi- answer is whether the dis- appeals must case.”) omitted). (quotation vidual explanation for the sentence trict court’s permit meaningful appellate sufficient to Sentencing III. Applying the Model Rita, 357, 127 551 U.S. at S.Ct. review. Irey’s sentence must be vacated and the not, the sentence should be vacat- 2469. If remanded case because court failed to pro- and the case remanded for further ed explain its deviation from the Guidelines ground the district ceedings on sentencing range and its denial of the Gov- it misinterpreted requiring the law request ernment’s and because failed to explanation. The court provide such intelligible findings make on two of the whether appeals also determines 3553(a)(2) purposes. four sentencing explana- on in the facts relied If clearly expla- tion were erroneous. Irey’s A. Sentence clearly and the nation is sufficient facts charged The Government William erroneous, question becomes whether one count of sexual exploitation reasonably supports the record 2251(c). children 18 U.S.C. under explanation court’s and therefore the sen- *84 § part, proscribes relevant 2251 “em does, If it did not tence. the district court ... in ... ploy[ing] engage minor to clear and did judgment commit a error any sexually explicit conduct outside of the its discretion. not abuse ... purpose pro States for the United sum, appellate scrutiny In of a sentence ducing any depiction visual of such con performed through the classic abuse duct,” “transport[ing] such visual de (cid:127) is consistent with discretion lens. This piction to the United States.” Id.69 The command that a district court’s sen- Gall’s mandatory carries a minimum of statute tence is reviewed for abuse of discretion years’ imprisonment and a maximum of 30 whether inside or outside Guidelines years’ Irey pled guilty and imprisonment. Gall, sentencing range. years’ 552 U.S. at imprisonm was sentenced to 17.5 It is with 597. also consistent ent.70 expertise. the district court’s 1. Guidelines Calculation unquestionably The district court is judicial fact-heavy actor to apply Irey’s sentencing process began best inquiry by presentence investigation. The PSI set open-ended demanded text, 2251(c) 2G2.1(d)(1), 69. As stated in the makes it a Pursuant to U.S.S.G. if the exploitation offense involved the more employ single committing crime to minor in minor, Three, Chapter than Part D indictment, however, one Irey's the offense. al- Counts) (Multiple applied shall be as if the employed leged that he “minors" in commit- exploitation of had each minor been con- ting the offense. separate tained in a count of conviction. forty exploited. were at least There minors Irey was sentenced not for commit- highest by offense level allowable indictment, ting alleged the offense guidelines exploitation is a If the level committing uncharged several offenses as forty if it of each of minors is scored as sentence, imposing well. count, separate were contained in a adopted following provision: avail- offense level would be well over the Irey’s eighteen paragraphs. out conduct minor shall be treated as if contained already separate Because the court has detailed count of conviction.”72 U.S.S.G. conduct, that I will not cmt. n.5. replicate Finally, here. 2G2.1 the PSI re- Irey say Suffice it to flew to Cambo- duced the offense level 3 levels based occasions, finding adjustments ap- dia on numerous hired child on its two prostitutes, photographed videotaped plied: Irey accepted levels because re- them, having brought sponsibility crime, himself sex with for the and 1 level be- States, images provided timely back to the United cause he notification of the pornography told, traded them on child plead guilty. Irey’s web- intent to All total Irey sites. The PSI found that had offense level was 43. forty
abused over children. Irey Because had no criminal convic- tions, ap- Section 2G2.1 the Guidelines he fell into criminal history category plied, which carried a base offense level of I. An offense level of 43 and a criminal specific history yielded 32.71 The PSI found four offense I category a Guidelines characteristics, which sentencing range increased the of- imprisonment, life fense level 12: 4 statutory levels because the which well exceeded the maxi- twelve; age offense involved minors under mum. object The Government did objected levels because the offense involved sexu- this calculation. use contact; al Guidelines, levels because the offense of the 2006 represen- PSI’s restitution, involved distribution of child pornography; ability tation of his to pay and levels because the portrayed offense the PSI’s statement there were no sadistic or masochistic grounds conduct. Two more departing from the Guidelines were levels added under the grounds “Irey’s Guidelines’ on the psychiatric because, “multiple counts” rules under condition and his lack of a criminal record 2G2.1(d), specifically “whether in support cited advisory sentence below the *85 not, the count of guideline conviction or each such range.” In support, Irey at- Therefore, only able appropriate maximum level of 43. sentence under all the circum- case,” i.e., groups determining two were utilized in stances of the a sentence that offense level. would be commensurate with the Commis- states, opinion correctly As the court's sion's Guidelines determination of what sentencing range (according Guidelines appropriate. prosecutor would be The either PSI, adopted) which the district presented grand called jury with additional 1169-70, imprisonment, indict, charges for life see ante at but it refused to or did not statutory whereas the penalty present maximum them at all. Irey's years' one-count conviction was 30 im- prisonment. 71. Section 2G2.1 Principles covers three crimes: 18 The of Federal Prose- (sex children), trafficking §§ U.S.C. prosecutors, cution instructs that advising (sexual children), exploitation grand jury, grand and recommend that the (production jury putative pornography of child indict the defendant “with the States). importation to the United commission of additional offenses when addi- charges necessary tional ... are to ensure provides that the ... ... indictment the basis probation applied multiple officer appropriate for an under all the cir- counts rules for two counts of conviction Principles § cumstances of the case.” exploitation 9- because "[i]f of each of the supra forty 27.320. See note 41. I assume that the minors is scored as if it were contained prosecutor count, Irey knew separate would have to be in a the offense level would be 2251(c) charged § with additional violations well over the available maximum level 43.” “provide[ in order to supra ] the additional basis for See note 70. Berlin, history bility, pedophilia, positive of Dr. Fred which con- report tached a society, history, tributor to lack of criminal Irey’s psychiatric condition. explained recidivism, low risk of and sentence be- (Def.’s Objection Investiga- to Presentence years’ imprisonment low 30 was reason- 2.) Report tion (See 1.) Sentencing able. .Defi’s Mem. said, Irey “acknowledged” That the “seri- Memoranda Sentencing ous nature” of his conduct and “conceded” imprisonment that a substantial term of sentencing memoranda parties filed (Id.) appropriate. Accordingly, Irey sentencing hearing. The in advance of the asked for a sentence of to 20 years’ first, filed its memorandum Government imprisonment followed a substantial pages. five After a two- which totaled (Id. 11.) supervised term of release. at facts, recitation Gov- paragraph ernment asked for a Guidelines sentence. In arguing for a below-Guidelines sen- Irey’s case for an outside- Anticipating tence, Irey three child pornography cited sentence, the Government ar- Guidelines cases where a district court’s downward 5K2.0(b) governs § variance gued appeal. Irey that U.S.S.G. de- was affirmed on cases; then focused on the factors and partures in child sex abuse parsimony principle argued and 5K2.0(b) only permits departures years’ imprisonment less than 30 would be Commission; grounds authorized (1) old, appropriate because: had not authorized Commission Irey would be an old man when released ca- departures on the basis of diminished prison just from even if he served the 15 behavior, family pacity, aberrant ties (2) sentence; minimum year Irey’s expert responsibilities. Although the Gov- psychological reports demonstrated that recognized ernment that Booker invalidat- a pedophile ability he is who had a “limited 5K2.0(b), urged ed the court to defer to control the behavior the of- supporting Congress’s policy preferences point- presented fense of conviction” and a “low doing ed out that so would consistent (3) recidivism”; risk of still 3553(a)(5)’s §with instruction to take into (Id. 9.) support family. had the of his policy account the Commission’s state- briefly Irey also criticized the Guidelines Finally, argued the Government ments. 3553(a), light arguing that some of atypical, that if the “case is it is because of specific offense characteristics were factors,” aggravating, mitigating, *86 (Id. 10.) cumulative. terms of evi- Irey’s that conduct and characteristics dence, Irey expert submitted two witness clearly fell within the heartland of the reports and numerous character letters Accordingly, the Government Guidelines. family from his and friends. a sentence.73 asked for Guidelines Sentencing Hearing Irey’s eleven-page sentencing memoran- Irey argued dum was more substantial. The district court did not follow the light acceptance responsi- sentencing hearing procedure that in of his I have out- 3553(a) purposes. any § 73. The Government’s memorandum did not Its reference to (a)(5), requires address how Guidelines calculation fit the factor was to which consider- particular light policy facts of the case in ation of the Commission's statements. 3553(a). propose any § The Government did not The Government did not cite evidence PSI; any findings identify beyond how its what was in the record and the 3553(a)(2) arguments proposed fulfilled the it focused its on the Guidelines. evidence, sentencing hearing began entering lined.74 The his crimes. After this adopting Irey’s argument, with the district court the PSI’s counsel made his which findings applica- of fact and Guidelines rehashed with some embellishment the ar- argument gument tions. But rather than hear on contained his memo- approximated day, Irey how well the Guidelines randum.76 At the end of the 3553(a) factors, argued that a Irey the court turned to sentence of between 15 and years’ plea mitigation. imprisonment up and his for with to a life- supervised time of release would be suffi- witnesses, Irey including put on nine but not greater necessary cient than however, witness, himself. His “star” 3553(a). comply with psychiatrist, Dr. direct exami- Shaw. On nation, essentially Dr. testified that Then came the Shaw Government’s case. The pedophile presented prosecutor put was a who on no witnesses and offered “moderate to low of recidivism” no exception risk based evidence with the limited of a “empirically on sample images validated actuaríais.” Be- few it showed the court cross-examination, permitting fore during argument. the course of the pedophilia prosecutor court asked Dr. Shaw whether began argument her with is an pedophile illness and whether a who observation that “the defendant is not be- acts out ing prosecuted does so out of “rational free will.” being pedophile.... for exchange car, This resulted in the that the As an alcoholic doesn’t have to drive a length. pedophile details and criticizes at See to put doesn’t have themselves cross-examination, Cambodia, ante at 1200-02. On a brothel which this defen- ” (Sen- impeach the Government not Dr. years.... did Shaw dant did for 53-54.) way.75 Shaw, meaningful tencing After Dr. Tr. Hr’g empha- She then Irey put eight character Fi- witnesses. sized that this was not a child pornography nally, Irey case, briefly apologize possession testified to production but a case and entirely surprising given professionals you This is not compart- tell that this is a appeals' regarding courts of confusion being mentalized area of his whole ais proper way to review sentences. See pedophilia, diagnos- result of his which is a infra note 84. psychiatric tic criteria for care. gathered What I from Dr. Shaw's testi- simply 75. The Government had Dr. Shaw ad- mony and the best I could from Dr. Berlin’s (1) Irey pedophile mit: awas interest report pedophile is that the behavior of a 13; (2) younger children than the actuaríais volitional, is, totally it is dictated in groups rapists used had control that included degree by some the disease itself.... pedophiles who were interested in chil- 13; (3) age depression dren above the [Irey] understands he needs to be pedophilia; and alcoholism do not cause- punished.... give But he asks the Court to questions designed asked a series of to elicit him some consideration rest of his depth expert's knowledge Irey’s life, separate apart from the crime he 21-24.) (Sentencing Hr'g crime. Tr. has committed. *87 Among points, Irey’s argued: other counsel You’ve heard that he's treatable. You've heard submit, Honor, that he’s low risk of recidivism. [W]e Your that a 360- got That would make him 66 or 71 when he greater month sentence here is than neces- out, if he served the entire sentence. He sary Irey light mitigation for Mr. of the you would be an old man. We ask presented. that's been guideline's way There consider a sentence less than the is no to minimize ... gravity Irey of the acts with which Mr. recommended sentence. 49-52.) charged. (Sentencing Hr’g You’ve heard the mental health Tr. “ruined, just absolutely for the most society. vulnerable of world’s lives,” I think that any question ruined over 50 children’s some So don’t there’s ever (Id. smiling dealing while he did it. at 54- but we’re with here with an times offense 55.) Asking very top the court to look at the sam that rises to the in terms of explained that seriousness and its effect on ple images, prosecutor other human (Id. added.)) at beings.” (emphasis the children were between and 6 Irey’s Summarizing, distribution of the im the court found that old and “the ages pic over the Internet had made the of the “certainly seriousness” offense does encouraged tures infamous. She the court not mitigate any leniency.” favor of offense, victimization, (Id.) Irey’s to consider the Turning history and char- “message acteristics, to people and the we send who the court found that Irey had (Id. 55-56.) would do this.” at In the good family been a man community end, member, prosecutor focused on the “vi brought the acts that him before Irey’s im ciousness” of crime—over 1200 purely the court were “not volitional” and ages of “torture” of the and some worst “due in part recognized substantial to a illness,” pornography agents child had ever and he had a “low” risk of recidi- impose seen^—-and asked court to finding vism. The recidivism turned on (Id. 56-57.) (1) year at points: sentence. two the court credited the ex- (2)
pert testimony, Irey’s age the—as it, put “by the time gets he out of Findings District Court’s prison likely age he’ll most be at an where hearing parties, After from both unlikely, just recidivism would be from a findings court made its on the record. (Id. 59-60.) physiological standpoint.” at explained The court first its task: 3553(a)(2)(A), § skipped court then I account guideline take into score 3553(a)(2)(B) (C). § jumping to Re- and consider that as a benchmark in deterrence, garding general the court imposing appropriate terms of an sen- found that a “hope- serious sentence would case, given tence in a and that bench- others, fully” deter that conclusion mark kept through- needs mind might “rationally because of ]” follow! analysis.... I out the But what need to (Id. 60.) pedophilia. the illness of at determining guideline do after score deterrence, specific Turning to the court is to look at the other factors on 3553(a)(1), findings referred to its individualized basis an effort to profes- reiterated that the mental health appropriate determine an sentence for categorized Irey presenting sionals particular this case. recidivism, low risk of and therefore found society protec- did not need “further (Id. 57.) him, beyond tion from at least the statuto- saying anything Without more about the (Id. 61.) ry minimum sentence.” Guidelines, the court launched into an 3553(a) factors, analysis beginning Finally, the court seemed to return to 3553(a)(1) 3553(a)(2)(A), stating nature and circum- comes down to “[i]t —the history my of the offense promotes respect stances and the view of what for the (Id.) provides just punishment.” characteristics of the offender. The court law and entirety characterized the as “horrific”: Here discussion: offense is the its “as *88 indicated, sentence, perhaps 30-year “The victims were numerous and I think that a ly responded I have that the sentence was “more given personal factors guideline, upon, greater necessary percent than to like 60 of the not half.” touched 65.) Tr. statutory objectives. (Sentencing Hr’g On accomplish hand, in light the other seriousness crimes, I think a above the of the sentence Why B. Must be Sentence (Id.)
mandatory minimum is called for.”
and Remanded
Vacated
Irey’s sentence must be vacated and the
Objections
Final
Sentence
resentencing.
case remanded for
As I ex-
II.E,
immediately
hearing
plained
part
supra,
The court
district court
—without
any argument
application
imposing
on the
abuses its discretion in
a sen-
parsimony principle
findings
improper
to
tence when it follows
procedures,
its
—an-
an
interpre-
nounced
sentence. The court settled
bases its decision on
incorrect
(or
clearly
imprisonment
on 210 months’
17.5 tation of law or
erroneous factfind-
$100,
years), a special
ings,
reviewing
assessment of
forfei-
or when the
court is left
ture,
supervised
lifetime term of
with the definite and firm conviction that
(which
mandatory
judg-
release
included a
sub-
the court committed a clear
error
stance abuse and mental health
ment
program
making
its
decision.
treatment).
specializing
objected
Irey’s
sex offender
The Government
sen-
(Id.
61-62.)
tence
on
substantive
reasonableness
grounds,
Irey’s
and I would vacate
sen-
Jones,
In accordance with
the court then
grounds:
tence on those
im-
the sentence
any objection
asked whether there was
posed cannot be reconciled with the dis-
the sentence or the manner in which it had
judge’s
factfindings
trict
on
pronounced.
prosecutor object-
been
3553(a)(2)(A).77
variance,
ed to “the extent of the
which is
half,
almost
and based on the
making
factors ad- When
findings
his
on
record,
particularly
3553(a)(1),
duced
this
judge
the seri-
remarked that
long-term
ousness and
nature of the of- when considering the “nature and circum-
fense,
offense,
[that]
extent of
variance
stances” of the
the crime “r[ose]
would be unreasonable.” The court
top”
mere-
terms of seriousness and
Here,
range”).
I would also find that the district
Guidelines
the court
improper procedures
followed
and committed
explain why
made no effort to
it sentenced
legal
following
errors
the model that I
years’ imprisonment
to 17.5
when the
forth,
objected
set
had the Government
years' imprisonment.
Guidelines called for 30
grounds.
those
This is the case for at least
Second,
impossible
it is
for this court to de-
First,
two reasons.
the district court failed to
3553(a)(2)
purpose
termine which
drove the
requisite
procedure.
follow the
adversarial
sentence.
Importantly,
adequately
it did not
address
overly
This is not to be
critical of the dis-
either the Guidelines recommendation or the
circuit,
trict
governing
court.
In this
the law
request
year
Government's
for a 30
is,
neglected
to articulate the
has been at sea. This
reasons
circuit’s
why
greater
precedent
such
sentence was
than
steps
neces-
has not made clear the
3553(a)(2)
sary
satisfy
purposes.
follow,
district court must
nor has it clarified
clearly
Gall
indicates that the failure to ex-
importance making findings regarding
plain
range
a deviation from the Guidelines
(a)(2) purposes.
judge
The district
fol-
Gall,
constitutes error.
552 U.S. at
procedural
lowed the
and substantive law as
(explaining
S.Ct. at 597
that the court must
best he could discern it.
explain
"adequately
the chosen sentence—in-
cluding
explanation
deviation from
*89
offense,
...
promote
that the “seriousness of the offense
did
the need to
respect for
law,
the rule of
just
and the need for
mitigate
any leniency.”
not
favor of
On
(2)
punishment;
weighing the three con-
(a)(2),
explaining why
after
the need for
other;
(3)
against
siderations
each
specific deterrence counseled a sentence of
making findings on the sentence needed to
years’
imprisonment
no more than 15
3553(a)(2)(A)
meet the
purpose.79 The
Irey’s pedophilia, age,
family
based on
(a)(2)(A)
court,
in making its
find-
ties,
the court turned to the
ings, failed to follow these
steps.
three
(a)(2)(A).
purpose
punishment,
The en-
While it mentioned the
“promote[
need to
]
(A)
tirety of the court’s discussion on
respect for the
“provide[] just
law” and
as follows:
punishment,”
intelligible
it made no
find-
my
It comes down to
of what pro-
view
ings
inquiries
gave
on these
no indica-
respect
pro-
motes
for the law and what
tion that it had considered facts crucial to
just punishment.
vides
I think that a
any determination of the
“just
need for
sentence,
30-year
given
personal
punishment”
promote
and the need “to
factors that
I have
upon
touched
(for
respect for
example,
the law”
the sen-
greater
necessary
than
to accomplish
received).80
tences other offenders
Simi-
statutory objectives.
On the other
larly, although the court stated here that
hand, in light of the seriousness of the
the seriousness of the offense “called for”
crimes, I think a sentence above the
“a sentence above the mandatory mini-
mandatory minimum is called for.
mum,” it
specific
made no
findings on the
seriousness of the offense when conducting
(Id.
61.)78
(a)(2)(A)
know,
inquiry.
however,
I do
inquiry
a court should conduct on what the court would find on the serious-
(a)(2)(A)
(1)
steps:
involves three
making ness of offense from
during
what it said
(a)(1)
findings regarding
There,
inquiry.
seriousness of the
it found that the
just
78. Given the
punishment
context
content of this find-
need for
for the offense and
ing, it is unclear that the court understood the
promote respect
the need to
for the law is
3553(a)(2)(A)
proper
inquiry.
The court did
permissible.
example,
For
it stands to reason
explain
by “personal
what it meant
fac-
that someone who acts under duress is less
may
referring
Irey’s
tors.’’
It
have been
culpable and therefore should receive less
recidivism,
just
low risk of
which it had
punishment
ordinary
than an
offender.
It
so,
If
found.
the court erred because a find-
also stands to reason that the court's failure
ing
specific
bearing
on
deterrence has no
pro-
to take account of that difference would
(a)(2)(A).
II.B,
part
supra, culpa-
As I
note
cases,
disrespect
mote
for the law.
such
(a)(2)(A)
bility does bear on the
need. For
however,
explain
the court
reasoning.
must
its
reason,
history
this
criminal
can be relevant
Ch.4,
(a)(2)(A).
Pt.A,
U.S.S.G.
intr. com-
Irey’s person-
79. The court’s narrow focus on
though
history might
ment. Even
criminal
conducting
al characteristics belies that it was
(a)(2)(A)
(a)(2)(C),
relevant to both
analysis.
this
finding regard-
does not mean that the court's
(which
ing specific deterrence
will be based
why
It is unclear
the court omitted the
factors, including
on a number of
criminal
“seriousness of the offense” when it said "it
history)
(a)(2)(A)
bearing
has
on the
need.
my
promotes
comes down to
view of what
course,
may
simply
Of
the court
been
respect
provides
for the law
just
and what
referring
personal
to the same
factors it had
punishment.”
may
It
have been because the
3553(a)(2)(C)
analysis
drawn on for the
thought
it had
3553(a)(2)(A)
settled the issue of the
up
independent §
set
analy-
Generally,
during
considering
per-
sis.
seriousness
the offense
an offender's
3553(a)(1)
impact
inquiry.
sonal characteristics for their
on the
*90
years,81
it is not
“horrific,”
very-
a sentence of 17.5
port
“rises to the
was
offense
explanation
this
for
seriousness,”
province
that “in
our
to make
top in terms of
making intelligible
judge.
of-
the
Without
[the
the ...
seriousness
terms of
just punishment
respect
on
fense],
findings
en-
long-standing,
long-term
the
law,
weighing the
explicitly
for
and without
certainly
mitigate
not
in it
does
gagement
reaching a conclusion
inquiries and
three
any leniency.”
favor
[sic]
(a)(2)(A) need,
they
the
I
how
bore on
on
Therefore, all I
the district
know about
say
review that
appellate
cannot
on
simply
(a)(2)(A)
that it found
findings on
court’s
imposed
supported
the sentence
It is incon-
very serious.
the offense to be
factfindings. All I have
the district court’s
on
judge’s finding
seri-
ceivable that
the
finding on the seri-
is the district court’s
trans-
alone would
ousness of the offense
offense,
of the
and I know that it
ousness
half of
late into a sentence at the bottom
im-
cannot be reconciled with the sentence
range of 15 to
statutory sentencing
the
No rational
could have sen-
posed.
judge
only two and a
years, let alone a sentence
Irey
years
to 17.5
based on the
tenced
statutory minimum.
half
above the
intelligible finding
seriousness
rose
—that
(a)(2)(A)
court,
conducting
inqui-
its
I
top
for
“horrific” crime.82
this
the three
ry, may have concluded that
Irey’s
therefore vacate
sentence on
would
were in tension—
relevant considerations
ground
supported by
that it is not
the
of the offense coun-
with the seriousness
I am
findings,
district court’s
as
able
top
of the
seling a sentence
or near
understand them.83
but,
statutory range,
example,
Irey’s
age
and advanced
I would remand
sentence to the
Irey’s impaired volition
just
that the district court can
decreasing
punishment
the need for
so
(a)(2) findings
If
were
make
and resentence
respect
for the law.
this
case,
than
sup-
accordingly
making
in the record could
our own
evidence
—rather
hand,
grounds, even if
81. On
other
if the district court's
substantive reasonableness
findings
just punishment
respect
proper
on
the district court had failed to make
finding
law were
with his
on
(a)(2)(A)
consistent
findings
respect
on
for the law and
offense, (a)(2)(A)
instance,
would
seriousness
just punishment.
In this
I would
sentence,
Irey’s
and a
drive
sentence
17.5
findings
vacate the sentence because
years could not be reasonable. Because the
district court made on the seriousness of the
(a)(2)(A)
judge's findings on
the three
—unlike
cannot be reconciled with the sen-
offense
(a)(2)(A)
subsidiaiy inquiries under
—cannot
imposed,
given
tence
the district court's
(a)(2) factors,
weighed against the
other
(a)(2)(A)
properly
the other
failure to
address
imposed
the sentence
would have to be harsh
considerations,
I cannot assume that
bal-
(a)(2)(A)
enough
satisfy
strong
need.
finding
anced the court's
on seriousness
the offense.
Contrary
to the court's characterization of
my
Irey's
opinion, I would
vacate
sen-
judge’s
It
what the district
is also unclear
ground
tence on the
that the district court's
general
findings
were and
on
deterrence
findings
insufficiently
are
"detailed” or "lack-
sentence,
they supported
though
whether
ing
specificity
Ante at
or effort.”
question
I need not address this
because it is
not,
My point
the court im-
1195-96.
as
imposed
sup-
was not
clear that the sentence
findings
plies, that a district court’s
need be
(a)(2)(A).
judge's findings
ported
unnecessary
length
of a certain
or belabor
entirety
Here is the
of the court’s discussion
points.
3553(a)(2)(B):
§ My point on substantive reasonableness is
aspects
There are other
of the statute that
findings
that a district court’s
must be recon-
subjective
essentially
in nature. Of
imposed. Had
cilable with the sentence
course, adequate deterrence to criminal
imposed
that was
district court
a sentence
(a)(2)(A)
conduct.
I mean a serious sentence is
findings
reconcilable with the
made,
hopefully going
from con-
Irey’s
to deter others
I would not vacate
sentence on
(a)(2) findings to determine whether
the ments this circuit’s answer to a question
so,
is reasonable.
To
we
do
that continues to vex the nation’s
courts
step
Booker,
have to
out of our role
would
appeals: after
what does appellate
*91
court and assume the role of
reviewing
review of sentences for substantive “rea-
I
explain,
resentencer.
As
now
this is
sonableness” under an abuse of discretion
today.
error the
precisely the
court makes
answer,
standard mean?84 The correct
as
IV,
I
in parts
demonstrate
III
supra,
Approach
The
IV.
Court’s
is to apply classic abuse of discretion re-
Today,
needlessly
the court
assumes the
view. The court’s answer is
a
shocking:
role of resentencer.
doing,
simple objection
so
ce-
that a sentence is “unrea-
affairs,
ducting
although
similar
when
abused its considerable discretion if it has
this,
dealing
weighed
we’re
with an illness like
I’m
the factors in a manner that demon
But,
strably yields
rationally
not sure that that
follows.
unreasonable sentence. We
nevertheless,
required
are therefore still
appropriate
to make the calcu
deterrence is an
....”)
consideration,
lus ourselves
and United States v.
a
Tom
stiff sentence is in
ko,
558,
(3d
(Fish
Cir.2009)
562 F.3d
585-86
keeping with the seriousness of this offense.
er, J.,
("As
dissenting)
the remainder
60.)
of our
{Id.
reveals,
analysis
the District Court's over-reli
general
The court’s statement
deter-
3553(a)(1)
§
justification
ance on
for the
"essentially subjective
rence is
in nature” in-
significant qualitative
quantitative
vari
dicates that the court did not understand the
granted pales
comparison
ance it
3553(a)(2)(B) inquiry.
inquiry
§
The
includes
3553(a)
§
numerous
suggest
factors which
community
the incidence of the crime
imprisonment
that a term of
is warranted....
community
and the
view of the offense. The
3553(a)
§
[W]e conclude that the relevant
fac
court should have taken into account its earli-
strongest possible
tors advocate in the
terms
finding
pornography
"epi-
er
that child
anis
including
a
imprison
a term of
demic,”
ready availability
driven
its
on the
ment.”)
Tomko,
(majori
phasis
(justifying
id. at 3491
Resentencing
Appellate
A.
finding
the court’s new
need
specific deterrence in sex crime cases be-
court,
question pre-
to the
According
...
cause
member of this Court
has
“[n]o
Irey’s
whether
sentence is “rea-
sented is
suggested
determining
before
that in
ever
determining
Ante at 1180 In
sonable.”
ought
law we
to confine ourselves to
“reasonable,”
the sentence is
whether
that
in the
the decisions
were cited
district
unabashedly explains
job
court
that its
court”)
added).85
(emphasis
to take the facts found
the district court
record,
any
others it finds in the
conclusion,
reaching
this
the court
findings
then make its own
for each disregards
Supreme
analysis
Court’s
3553(a)
§
factor.
Id. at 1189-90. After
See,
Gall,
56-57,
e.g.,
at
Gall.
U.S.
making
findings,
its own
the court re-
600-02,
at
(reversing
Eighth
3553(a)
§
weighs the
factors and deter-
“[although
correctly
because
[it]
Circuit
range
mines for itself what
of sentences is
that the appropriate
state[ed]
standard of
(“In
discretion,
reasonable.
Id. at 1189
order to de-
it engaged
review was abuse of
occurred,
termine whether that has
we are
analysis
closely
that more
resembled
‘required
[sentencing]
presented” by,
to make the
calculus
novo review of the facts
de
step
example, concluding
ourselves’ and to review each
that
the district
Likewise,
Gall.”).
pellate
reviewing
commentators have noted
courts in
sentences. Sever-
Supreme
seemingly contradictory
seemingly conflicting imperatives
Court’s
al often
Bowman, III,
Booker....”).
imperatives. E.g.,Frank
play after
O.
De
Supreme
Mangled
bacle: How the
Court has
claiming
85. The court does not seem to be
Sentencing
Might
American
Law
It
and How
relevant,
Mended,
a
that whether
fact is
in the eviden-
YetBe
77 U. Chi. L.Rev.
459-60
sense,
(2010)
tiary
presents
question
of law. Rath-
(claiming
Supreme
Court’s
er,
says
given
"impor-
the court
that a
fact’s
sentencing
entire line of Sixth Amendment
tance,”
is, weight,
deciding
presents
"tangle
excep
cases
of rules and
nor,
3553(a)
presents
question
obviously
simple
issue
of law.
tions” that "is
neither
above,
length
logical”);
(explaining
that the district
as illustrated at
See ante
Lind
Harrison,
say
Appellate
C.
Discretion and Sen
court cannot write facts out of
record
them,
Booker,
tencing
ignoring
even if it reflects the court’s
62 U. Miami L.Rev.
after
(2008) ("What
important”
judgment
are not
1115-16
has resulted is
that “those facts
3553(a)
ap-
inquiry).
primarily confusion about the role of the
3553(a)
weight
too much
“gave
plays
Gall’swith
a critical
in appellate
role
sentences,
the conspiracy”) (quotations
just
drawal from
review of
as it does in the
omitted);
Smart,
United States v.
518 initial
decision” and the court of
Cir.2008)
(10th
(reversing
appeals
“apply
F.3d
must
those same factors in
precedent
determining
as inconsistent with Gall that
whether a sentence is reason-
able.”)
added).
weight assigned
“de novo
(emphasis
had reviewed
3553(a)
to various
factors be
purports
The court
to apply abuse of
weighing process
cause we considered this
give
discretion
it will
because
some defer-
law”).
a question
ignores
to be
It also
ence to a district court’s
Spe-
conclusion.
precedent
repeated
this circuit’s
—we
cifically, the court
*93
definite and firm conviction that the dis-
Amedeo,
823,
(11th Cir.2007);
487 F.3d
832
trict court committed a clear error of judg-
Gardner,
v.
Fed.Appx.
United States
363
3553(a)
§
ment in weighing the
factors.”
(11th Cir.2010)
688, 690
(unpublished);
1190,
omitted).
Id. at
(quotation
1191
But
Pertil,
569,
States v.
Fed.Appx.
United
344
the line between “unreasonable” and “most
(11th Cir.2009) (unpublished).86
573
appropriate” blurs. And it
quickly
blurs
case,
because questions
Whatever
of when the court conceives of its role as to
3553(a)
§
law are reviewed de novo even under the
conduct the
inquiry for itself and
standard,87
of
identify
abuse
discretion
the court
range
of sentences the district
give
(as
does not
even think it owes— court
reasonably imposed
could have
—or
3553(a)
deference to the district court’s
opposed to reviewing the district court’s
(“Section
analysis.
3553(a)
ante at
reasoning
See
1183-84
from its
factfindings
Though
disputed,
question
court is convinced that it is not
weigh
is how to
them
committing
Eighth
sentencing purposes....
the same mistake as the
We would find
unreasonable, however,
conducting
inquiry
grossly
Circuit in
an
any sugges-
Gall —
3553(a)
Irey
factors akin to de novo review—
may
tion that
the credit
due
for his
striking
there
family’s feelings
are
similarities between the
remotely
two
for him could even
Gall,
analyses. Compare
approach
heavy
United States v.
446
weight
against
stacked
884,
(8th Cir.2006) ("First,
committed.”),
F.3d
889
him
dis-
for the criminal acts he
(“With
gave
weight
trict court
too much
to Gall’s
ante at 1217
child sexual abuse of
Irey
conspiracy
capable
withdrawal
from the
the kind that we know
because the
of and
committed____
acknowledge
significant
failed to
has
[E]ven
with an assumed
being subject
following
benefit
low risk of recidivism
Gall received from
to the
release in 15
months,
Guidelines.”),
38,
imprisonment
3
rev’d 552 U.S.
for that
586,
445,
length
adequate pro-
of time does
afford
S.Ct.
169 L.Ed.2d
and id.
not
at 891
("[T]he
him.”).
tection from further crimes
properly weigh
district court did not
the seriousness of Gall’s offense. While the
States,
81,
district court observed that Gall's offense lev-
87. See Koon v. United
518 U.S.
100,
adequately
2035, 2047,
el did not
reflect the
con-
offense
116 S.Ct.
father, community point.”). and member of the are tion of the equities or conclusion). “reweigh not to ap- courts is the court of Once to its make sure that what the facts but to independently identified reassess has peals sen- range permissible from [the is the derived believes the conclusions appellate (explicitly implicitly), ju- tences and assessments weighings court’s] inquiry into whether review becomes rec- supported by the dicially sound and falls within the court’s sentence the district ord”).88 it, appeals, the court of range of sentences worse, con- the court does not isWhat imposed. approach This
would
fac-
analysis of the
fine its new
guise
novo review the
to de
amounts
evidence,
objec-
arguments,
tors
Curtiss-Wright
See
of discretion.
abuse
In so
to the district court.89
tions offered
10,
Co.,
1,
Electric
U.S.
Corp. v. Gen.
ignores
the court
well-established
doing,
(1980)
L.Ed.2d 1
100 S.Ct.
implicitly
appellate procedure
rules
conducting abuse of
that when
(instructing
Jones,
v.
review,
overrules United States
appellate
the role of
discretion
my
Taylor,
The court contends that "much”
on United States
88. The court relies
"faulty
101 L.Ed.2d
from the
487 U.S.
criticisms on this score stem
(1988),
proposition that courts of
for the
only
government made
premise that
decision
appeals must scrutinize
objection’
Irey’s
is 'un-
'simple
”
closely
is arrived at
because a sentence
more
44. With this
reasonable.' Ante at 1223 n.
statutory
by considering
factors.
a number
hand,
position
my
mischaracterization of
though—
Taylor,
& n. 15. In
Ante at 1189-90
by citing
purports
defeat it
the court
of whether a
addressed
the issue
which
*94
reaching the uncontr-
number of our cases
discretion
dismiss-
district court abused its
party
re-
conclusion that a
need not
oversial
ing charges
prejudice
with
when the Govern-
arguments
peat
colloquy
it had
in the Jones
Speedy
Act viola-
committed a
Trial
ment
See, e.g.,
already
to the district court.
made
Supreme
specifically
Court
limited
tion—the
Weir,
United States
factfindings sup-
analysis
the
its
to whether
(11th Cir.1995) (declining
apply
to
the waiver
charges
ported the decision to dismiss the
“clearly under-
rule when the district court
with the
prejudice. The Court started
with
[party’s] position
specifically
dismissing
charges
the
the
stood
district court's order—
prejudice
it”).
to see
then looked
rejected
—and
supported that conclu-
whether the record
My
It
true that a
criticism is different.
Ultimately, because the district court
sion.
specific
general objection
preserve more
will
reasoning,
fully explain
the Court
did not
its
actually
arguments
litigant
made to the dis-
Court failed to con-
"[t]he
held that
District
court, id.,
general objection
but a
does
trict
of a
sider all the
relevant to the choice
factors
arguments
litigant
preserve specific
that a
remedy
Act. What factors it did
under the
findings
Here,
rely
unsupported by
on were
factual
example,
Govern-
never made.
the
Taylor, 487 U.S.
or evidence in the record.”
argue
general
did
terms that
ment
Finding
at 2423.
insuffi-
due
30-year
would be reasonable
to
support
for the district
cient
in the record
Irey’s
the Gov-
crimes. But
seriousness
refusing
conjure
to
its
court's decision
the court does
ernment did not contend—as
explanations,
the Court held
own
today
good
credit would
behavior
—that
Tellingly,
discretion.
district court abused its
sentence,
Irey’s
that such a sen-
reduce
or
Speedy
Act
Trial
the court did not conduct
"
amount
less than four
tence would
its
remedy inquiry for itself: It did not reach
[Irey’s]
50 victims.” Ante
months for each
way
Speedy
each
own conclusions on the
made these
Had the Government
1208-09.
cut and it did not decide
Trial Act factor
the court considers
arguments and the others
or
the case should be dismissed with
whether
here,
may
court
first time
the district
for the
Rather,
prejudice.
because the deci-
without
Since the
imposed a different sentence.
discretion,
left to the district court's
sion is
not,
may not consider
did
we
Government
simply
question
to it
returned
appeal.
the first time on
them for
for reconsideration.
(11th
Cir.1990),
citing
overruled on
new evidence.
respect
With
3553(a)(1),
Morrill,
grounds by
example,
other
United States v.
the court creates
(11th Cir.1993) (en banc).90
argument
for the first time an
1264 Regard- court. cites never heard the district points, both of these the court prove punishment, the Govern- ing need expert evidence never offered (cit does, argued, as the court at ment never court.94 See id. Winick, good behavior credit would reduce Law in ing Bruce J. Sex Offender Irey’s years, to 15.5 which Jurisprudence sentence Therapeutic 1990s: A than four for each L. amounts to “less months Psychol. Pol’y Pub. & Analysis, at Nor did (1998), Hall Richard 50 victims.” Id. Ryan [his] C.W. & Irey’s Hall, argue the Government Pedophilia: A C.W. Defi Profile nition, not reflect the seriousness of the Offenders, Recid does Characteristics of ivism, Outcomes, years he received 2.5 and Forensic offense because Treatment Issues, longer than the 15 he would have Mayo Proc. Clinic (2007)). picture had he taken one lewd of a served 17-year-old girl. Id. at 1209. argue, did the ever
Nor Government does, deterrence, respect general court the court the district With analysis would new to the clearly finding Irey good erred in had court’s entire court. The Government never ar- positively character and had contributed to district community. gued general that the deterrence family his See id. need that, especially compelling por- child (contending categorically, 1203-05 anyone nography the crime com- context. But see id. at 1210-12. who commits family pointed his to lose The Government never to Su- mitted and causes its good family preme underscoring and home cannot be a Court cases that im- business character). good portance, appellate reversing man and have Nor did or to cases argue questioning logic to the district court district courts for Government Irey’s general pedophilia that it should not have considered deterrence when age old in his favor because to do so would involved. But see id. evading
reward him “for detection and it is completely ignored The Government unreasonable to that.” do Id. specific deterrence at the hear- Similarly, reweighing ing.95 questioned, each Government never 3553(a)(2) conjured today, purposes, the court as the does the district court’s arguments 65-year-old that a finding new and cited new evidence male would be ("Nothing apt mum. id. at entered into the A See less than the record. more term *96 advisory guidelines years, might Vining be "extra-record sentence of 30 information.” Corr., available, Sec’y, Dep’t 571 which is the maximum serve will of Nevertheless, (11th Cir.2010). per because it purposes set out 3553(a).”). forms function of evidence in the court’s analysis, I it event, refer to as such. any my point In is that when review- sentences, ing this should not consider fact, conjure arguments stipulated evidence and that have 95. the Government that I, Irey history category never been offered to the district court. That fell criminal into principles ap- stip- is inconsistent with classic of which in essence means the Government prison beyond pellate review and will dam- ulated that no time that called cause immense specific age for his offense level was needed for relationship we have institutional Accordingly, deterrence. the Government with the district courts of this circuit. argued, example, Irey's never that crimi- "evidence,” Though expert history category under-represented po- 94. I label this it is nal his technically not evidence because it was not tential for recidivism. Revocation, Probation, activity “physio for sexual from a ence Fed. too old June 2006; Langan al., Patrick A. et Bureau of at standpoint.” But see id. logical Statistics, Justice Recidivism Sex then, Obviously did the Government of Of Released Prison in 1991 fenders from published involving sex opinions cite to (2003); Report 2009 Annual the Di of age point. over 60 to make this offenders rector: Judicial Business the United of id. at Nor did the But see 1213-14. Gov 2010); (forthcoming States Courts spring expert ernment enter evidence about the Protecting Our Nation’s Children from high rates of comparatively recidivism old Sexual Predators and Violent Criminals: see at 1214 er sex offenders. But id. Done?, What Needs to Be Hearing Before Tracey Kyckel Mark (citing Motivans & Crime, Terrorism, the Subcomm. on hahn, Federal Prosecution Child Sex Comm, of Security Homeland the H. 2006, Bureau Exploitation Just. (2005) (state Judiciary, Cong. 109th Offenders Bull., proposition Berlin, M.D., Dec. for the Stat. ment of Fred S . Associate Professor, Johns Hopkins University)). that 7.3% of all sex are over offenders Hall, Ryan Hall Richard C.W. & C.W. Finally, 3553(a)(6), respect Definition, Pedophilia: A Char argued Irey’s Government never that sen- Profile of Recidivism, produce tence would Offenders, acteristics Treat dispari- unwarranted ty. then, it Obviously, never Outcomes, cited twelve Issues, ment and Forensics cases for the proposition that the defen- (2002), Mayo Clinic Proc. prop dants those cases committed a less seri- up pedophiles osition 44% of were ous crime than received more (age in the older adult 40 to 70 range at serious sentence. Id. 1219-21. years) and that pedophiles “offend their If the analysis court’s leaves doubt years at greater later rate than other the court has assumed the role of offenders”). sexual resentencer, its conclusion removes it. Af- deterrence, on specific Still the Govern conducting ter equivalent the functional never a new argued sentencing hearing, ment lifetime of su court con- cludes less than “[n]othing the adviso- pervised release would be insufficient to ry guidelines years, which is protect public by pointing Bureau of available, the maximum will serve the sen- statistics, evidence, expert Justice other 3553(a).” tencing §in purposes set out Id. demonstrating possible and cases that it is at it vacates Accordingly Irey’s sen- supervision. to recidivate when under But tence and remands the case with the in- (citing see id. 1214-16 Bureau of Justice struction that the district court impose a Statistics, Dep’t Justice, Federal Crimi years’ sentence of 30 confinement. Id. Trends, 2003, (2006); nal Justice Loretta unprecedented 1224-25. With this step, Stalans, J. Adult Sex on Com Offenders indisputable that the court has resen- munity Supervision: A Review Recent tenced Mr. Irey.96 Treatment, Strategies Assessment (2004); Crim. Just. & Behav. 564 James L.
Johnson, Sex on Federal Com today’s After opinion, is the law of this Offenders munity Supervision: Factors that circuit that a party disappointed by who is Influ- Though we have ed Livesay, reversed sentences on States v. 587 F.3d 1278-79 before, (11th Cir.2009) grounds (vacating substantive reasonableness a sentence and in structing we have never ordered imprisonment required the district court to See, particular impose e.g., leaving a length sentence. Unit the of the term to the district by- ments; handed down if the sentence imposed has district court the
the sentence
of that
outside
court
falls
the district
resentencing.97
court for
to this
may apply
Sometimes,
reverse.
range, we will
testimony,
disappointed
the
Except for live
Here,
the
single point.
a
range could be
never offered
evidence
party can brief
than
any
other
sentence
court holds
to the district
articulated
never
arguments
would constitute
imprisonment
years’
point, this
vantage
new
From its
court.
the district court
an abuse of discretion —if
the district
second-guess
then
court will
months,
years,
to 29
the
had sentenced
will determine
We
court’s sentence.
abused its
days,
it would have
correct
sentences
objectively
range of
law.98 The court
as a matter of
discretion
argu-
new
new facts and
on the
based
disregard the
could
discretion);
though district courts
at 1204
Pugh, 515 F.3d
court’s
circumstances,
extraordinary
stating what the sentence
Guidelines
(remanding without
law,
Martin,
cases,
be);
455 F.3d
as a matter
because in "most
United States
should
(11th Cir.2006) (same);
Crisp,
adequately taken
will have
1241-42
the Commission
account,
(same).
and no de-
at 1291-92
factors into
all relevant
permissible.” United
legally
will be
parture
220, 234,
Booker,
case,
disap-
543 U.S.
the Government is the
States v.
In this
(2005).
738, 750,
suppose
defendant
This was
pointed party. But
the
1267
taking
magnify,
not
the abuse of discretion stan-
times
punish-
is
the crime and the
”
seriously.
Gall,
dard
ment to ensue.’
S.Ct.
Koon v. United
Harm
B.
Institutional
States,
81, 113,
518 U.S.
(1996)).
tional has open-ended and to undertake the and fact- judicial in the tradition constant federal for 3553(a) heavy See, Gall, inquiry. e.g., sentencing consider judge every the 51-52, 552 U.S. at S.Ct. individual 597-98 person convicted as an and ev- study (explaining a the district court ery unique case as the human is in a failings that mitigate, “superior position sometimes some- to find facts judge facts, will, imposed particular time, its abuse discretion unless a sen- we set of over imprisonment. years’ tence of at least 10 up statutory sentencing carve ranges to the case, Suppose that a another defendant point possible that it identify will be the crime, facts, again the same under X commits maximum imposed sentence can be appellate the court decides that the dis- solely based jury on the facts embodied in the necessarily court would abuse trict its discre- fact, today, verdict. In I after fail to see how imposed years' if it tion a sentence above 20 impose a district court could a sentence of decisions, imprisonment. two After those less than a materially similar sentencing range court has created a that is occurs, defendant. Once that this court will respects in all to a identical relevant manda- have reintroduced Sixth Amendment vio- tory-Guidelines range: as a matter supposedly by lation cured Booker. law, a violates of defendant who the crime part standard of review I set out in X set of a under facts must receive sentence of II.E, supra, gives meaning appellate review years' impris- between somewhere 10 and avoiding sentences while this result as If the defendant did not admit all onment. possible. my much approach, as Under this facts, then the court district would base court is reweighing not in the business of all judge-found by pre- that sentence on facts a record, of the conducting facts in the a ponderance of the evidence. district 3553(a) novo, inquiry declaring de judge would then have unfettered discretion range of objectively sentences that is correct to sentence a who defendant commits the Rather, my ap- "reasonable.” under crime under X facts between 10 and from proach, when we reverse sentence on sub- years, but would have no discretion to sen- grounds, simply holding stantive arewe beyond range (just tence as the district non-clearly under the erroneous facts found
judge had unfettered discretion to sentence by light judge the district of the district range within of sentences identified judge's explanation, judge rational no could Guidelines). mandatory imposed that sentence. We would not Today, step court takes in this di- given hold as a that on a matter law set of rection. The court of its conceives role as to facts, only a of at so-many least range determine what of sentences is "reason- years' imprisonment is reasonable. Nor words, deciding able.” other import particular would we decide the a matter of law of the the bounds district time; 3553(a) inquiry facts to the for all statutory range court's discretion within hold, example, we would as the court particular set of facts contained in this does, that pedophilia-as-diminished-capacity record. The court concludes that under the can never form basis for a case, downward of this facts must sentenced to departure in a sex crimes case. Such a stan- years’ imprisonment less than no or the gives judges dard district maximum discre- necessarily court would abuse its dis- anywhere tion to along sentence a defendant approach cretion. If we follow court's statutory range and thus range objec- and declare what sentences is tively remedy more "reasonable” on our own consistent with the fashioned based assess- Supreme light ment factors Court in Booker. *99 3553(a) diminishes tryout a on the road. This § in the indi- under import their institutional role the the district courts’ looks the defendant case” because it vidual legal profession eyes public of the and the insights not eye, gains in the and witnesses courts record, strips it the district has ex- because conveyed by the cold defacto authority.99 Congressionally given (quotation of their sentencing experience) tensive merely procedure is a omitted). If the district court court’s effective use The district may in however, tryout, busy a district court be turns on the expertise, of its to its pay lip to mere service lawyers clined of the participation active —the 3553(a) duty simply impose Guide counsel —in the and defense prosecutors sentence;100 all, by Rita after its sentence lines adversary proceeding envisioned tentative, only subject to second- by my opinion would and Gall and fleshed out And even if the dis guessing appeal. is vital to on today. professionalism Their Indeed, duty, pros if wanted to do its the sen- trict court sentencing process. the may present government’s ecutor the inspire are to the confidence tences to sentencing best case to the district court —better public, defendant and the the court im must be the wait and see what sentence hearing in the district court event,” expending government’s “tryout poses than a on the before “main rather that will deter- resources.101 road” for the real forum Wainwright Sykes, the sentence. mine willingness ignore The court’s to time- 2497, 2508, 433 U.S. contemporaneous objection and honored (1977). L.Ed.2d 594 default rules diminishes procedural Today’s decision sends the unmistakable status of the district courts for another message nothing designed court is reason.102 These rales are to the district case, participated unique In this the Government will not be tailored to the facts before court, through parsimony princi- prosecutor’s will not serve the in the diminishment sentencing argu- ple, injustice present a robust and will work an on one of the failure parties. ment to the district court and failure to ade- quately call attention to the mistakes she be- lieved the district court made. Defense tendency impose sen- 101. District courts’ required by counsel are the Sixth Amend- range tences within the Guidelines worsens perform highest professional ment to at the already perverse incentive. this This circuit’s hearing level and to treat the be- imposed district courts Guidelines sentences If fore the district court as main event. of the cases from October 65.6% performance wanting, is defense counsel’s through September 2009. See United may it Commission, counsel have to answer for in collat- Sentencing States Sourcebook of proceeding alleging Statistics, de- (2009). eral a violation of the Sentencing Federal tbl. 26 right to the effec- fendant's Sixth Amendment gives approach government The court’s prosecutor, tive assistance of counsel. every incentive to rest on the Guidelines and however, having 3553(a) does not run the risk of put §no evidence before the dis- judge pro- (as government answer to a in collateral frequently trict court does). ceeding charge inept performance. infrequent on a In the event that the dis- imposes a trict court below-Guidelines sen- tence, government nothing would lose be- Congres- 100. This would not flout cause it could make its case for the 3553(a), sional embodied in command appeals. first time before the court of deny justice would also for either the United States or the defendant. If the facts and Jones, all, simply application
circumstances of the case call for a sentence after sentencing range contemporaneous objection rule to the outside Guidelines 3553(a)(2) Sentencing unique satisfy purposes context. be- federal by the often will—the sentence cause the district court is not bound sentence—and
1269
(2001)
give the
court
bother, try there need to put is no to This court is not well-suited to sentence position court in best make district to offenders another and even more im decisions. portant Supreme reason. The Court has
Sadly, today our approach abundantly diminishes made clear the crucial role that good process plays sentencing. Gall, district role for no reason. court’s See 552 49-50, sentencing authority dis- at It transfers from U.S. at 128 596-97. S.Ct. judges appeals, public’s which and the trict to the courts defendant’s confidence in judges’ experience justice the district and the of a turn lack sentence on how the expertise imposing criminal sentences. sentencer arrived at Given it. the stric review, today’s shows, length opinion appellate tures of it is impossible As attempting duplicate the for us to accord a process even to defendant the huge See, in- judge’s requires e.g., task is due. Fed. R. Crim P. 32(i). De- vestment of this court’s resources. When this court resentences de investment, fendant, real it spite huge deprives there is no him a meaningful lack of experience hearing right return: due to our which he has to ad job judge him expertise, poorly eye we are suited to the dress a who can look in the wrong will not reach infrequently deciding before his fate. See Fed. 32(i)(4)(A)(2)(ii). Moreover, our result. fact-intensive re- R.Crim.P. Because the incapable decisions will be of defendant’s first notice of the reasons for ability hinder our factual generalization and will resentence and its bases is provided by opinion guidance imposing establish clear the district this court’s sentence,103 of our deprived courts circuit. See Koon v. he right United States, 98-99, object 116 to U.S. S.Ct. to the reasons and factual base 2046-47; States, And, deprives see v. crucially, also United s.104 him of a Buford 59, 65-66, 1276, 1281, U.S. right appeal. S.Ct. to treatment Such of a liti- evidence, findings parties' proposed presented rule matters not to the trial conclusions, parties’ arguments considered, and the at the Depree court will not be v. Thom hearing. close of the If the as, district court (11th Cir.1991), would findings arguments bases to argu refuse entertain the evidence and sentencing hearing, articulated not at the ments, precious and thus would not waste object parties opportunity must have an space briefing respond. findings the court's and conclusions and ob- tain correction error the district right 104. The defendant would have the may court have made. rehearing, petition the court for but a rehear- ing petition perform does not the same ser- That the Government's brief cites evi- post-sentence objection provide vice a would arguments presented dence advances in the district court. to the district in the first instance is of moment. Defense counsel would assume no court, adhering that this to its time-honored main court, forum for the appropriate disrespect for the
gant not breeds event. due law, raises serious but also rule Florida, concerns. See Gardner
process 1197, 1207, 430 U.S. *101 V. (con- (1977) opinion) (plurality L.Ed.2d 393 reasons, I va- foregoing clause was would process that the due For the cluding and remand to the Irey’s sentence was im- cate “the death sentence violated when resentencing. court for district the basis of part, on at least posed, opportunity no which he had information explain”). deny EDMONDSON, Judge, Circuit BIRCH, BARKETT dissenting, which sheet, sum, a balance placed In when on MARTIN, join: Judges, Circuit by the harm caused grave institutional outweighs significantly approach
court’s places the law on the The limit might yield.105 any approach benefit power court to inter- right appellate use of appeal on dimin- Resentencing defendants decisions of Unit- fere with court in the ishes the role of the district (who, course, Judges District ed States profession, and it dimin- eyes legal powers of their have —under the law — in the district public’s ishes the confidence own) is, me, appeal what this is about. administering an courts as institution specific case before us involves seri- The gob- justice. criminal It misallocates ghastly ous crime and conduct —“horrific” None of this up judicial Judge’s part bles resources.106 in the District words —on And, necessary.107 If a sentence constitutes no has contend- party is of Defendant. discretion, imposing simply Judge, we should ed that the District abuse of sentence, significant procedural made a er- say return the case to the district so and decision, only tenced. The court’s could affect benefit that comes to mind is The defendant, many sentencing appeals resentencing we of the hundreds of finality. In bring we see in the to come. make his final and his case to will sentence a close. Irey's if 107. The court claims that reasonable, any acknowledges we have re- then sentence is reasonable
106. The court days pre-SRA rea- and that would return us to the viewed hundreds of cases for substantive decided, judge a "law him- where a district unto sonableness since Booker was (quotation by point- impact self or herself.” See ante minimizes the of its decision omitted). justify only arguments do not ing Circuit has These out that the Eleventh First, resentencing approach Irey. court’s reversed sentences in four of these cases. See decision, say Irey’s unreason- today’s we can sentence is ante at 1191. After howev- er, may appeals it aside under classic abuse we see more sentence be- able set review, party we need not resentence can ask this court discretion cause dissatisfied the reasonableness concern. the defendant based on infor- to solve to resentence Second, worry we need not about a return to position that the dis- mation favorable to its days given post-Boo/cer neglecting pre-SRA re- presumably ignored by trict court quirements judges exercise their stating that district to mention the information in its rea- only conducting a prece- sentencing discretion after And with the sons for the sentence. factors, statutory applying process, dent that we can consider evidence not in the formal is then arguments explaining their rationale —which new for or record and make appellate of dis- may subject to review for abuse against party appeal, we see more defendants resen- cretion. sentences vacated—or (who government prosecutors
ror.1 standard of review. Gall United States, showing bear the burden of reversible er- U.S.
ror)
(2007),
L.Ed.2d 445
imposed
Supreme
contend that the sentence
Court—
in the course of reversing
court
too
an appellate
lenient and that no
judgment
that had overturned a
except
sentence would be lawful
the maxi-
dis
trict court’s sentence as
light3
too
imprisonment
mum sentence of
—set
standard of review:
we
look to see if
pertinent criminal statute will allow: 30
the sentence is reasonable in
light
of a
years.2
“deferential abuse-of-discretion standard.”
appel-
issue is not whether federal
40, 128
Id. at
S.Ct.
judges ought
late
duty. They
do their
*102
This
standard
promotes
review
must. And the
appel-
issue is not whether
(among other things) finality in criminal
late courts can review sentences and some-
cases. But the deferential abuse-of-discre-
aside,
correctly
times
set them
even when
tion standard was
mainly
selected
to rec-
the
imposed
proce-
sentence was
without
ognize that the Sentencing Guidelines are
They
Appellate judges
dural errors.
can.
advisory only and a
Judge
District
must
legitimate power
do have some
to review
presume
not
that the sentence indicated
is,
the substance of sentences:
to
by the Sentencing Guidelines is a reason-
determine whether a
Judge
District
has
able sentence for the convicted person
imposed a sentence that
is either too le-
standing before the District Judge:
the
nient or too harsh as a matter of law. The
District Judge must make for each convict-
general question presented here is what is
person
ed
“an individualized assessment
limit,
law,
power
the
under the
on the
Gall,
based on the
presented.”
facts
appellate judges
deciding
such reviews.
50,
Thus,
U.S. at
It is
humanizing
indicted,
appreciate
I
this kind
plead guilty,
being
dered after
testimony raises a familiar debate about
re-
accepted
He
expressed
and
remorse.
character to be
possible
it is
whether
and relieved the Government
sponsibility
person
so that a
who is
compartmentalized
a trial.7
expense
and
of the trouble
wicked)
(or
way
really
can
bond,
in one
he weak
surrendering
posting
and
After
(or
ways
other
or
strong
good)
cen-
some
treatment
entered into
residential
holisti-
character must be viewed
It
is whether
step
toward rehabilitation.
ter:
person’s
that a
weak or wicked
pri-
cally
has no
so
that Defendant
undisputed
also
Furthermore,
a reli-
produces
character in one context
De-
criminal convictions.
fa-
and,
every
context. This
justice
able conclusion
not obstruct
fendant did
up by
taken
Aris-
miliar debate has been
contrary,
government
with the
cooperated
Kant
other Greats. And I
the nature of
totle and
information about
providing
(time,
power
Appeals
of a Court of
identity of others
doubt
places,
offense
his
forth).
I
it as a matter of law. Whatever
These
resolve
with whom he dealt and so
family-
might think about this
traditionally
personally
com-
things
kinds of
evidence,
Judge in
of a
and-friend
the District
monly
lessening
in a
been reflected
legal right
had the
to determine
it would have other-
this case
sentence from what
credibility of the
before him
In
of the full rec-
witnesses
wise been.
the context
ord,
testimony
weight
give
ba-
and to
things provide
these
reasonable
record, this evi-
to be less
he did.8 Given the entire
sis for the sentence
this case
support
dence was reasonable evidence to
than the maximum allowed
the statute.
than the maximum sen-
a sentence less
Moreover,
sentencing hearing
at the
pertinent
tence allowed
statute.
court,
Defendant
stood before
addition,
sentencing hearing,
at the
spoke
judge
impose
who would
him;
presented
expert
Defendant Defendant
witness:
upon
the sentence
not;
government
this Dr. Shaw. The
did
presented witnesses
his behalf:
object
did not
to the ex-
govern-
government
an oral-evidence case. The
case is
*105
expert
of the
witness.
presented
pertise
ment
no witnesses.
Several
Defendant’s
(nor
expert
suggested
any-
to The
never
has
family
friends and
members testified
else)
guilty
not
generally and
one
that Defendant was
Defendant’s characteristics
But
history
employer,
as an
account of some mental disorder.
good
works
testify
did
that this
parent,
loyalty
expert
and so on and to their own
mental health
Defendant,
recognized
human
was afflicted with a
support
as a
Defendant
likely be
Kapordelis,
found the defendant would not
7. Contrast United States
(11th Cir.2009),
given
F.3d 1291
where defendant—
"his attitude and lack of
rehabilitated
charged, among
a medical doctor
other
remorse.”
images
things,
producing pornographic
underage boy
underage boys (including
one
I think it was
Frost who said that
Robert
who
relative and another under-
was his near
than
"there are tones of voice that mean more
patient:
age boy
had
the doctor's
who
been
Judge
words.” A District
hears those tones.
boys
seemingly drugged defendant had
Furthermore,
Judge
wit-
a District
sees the
first)
(despite powerful photograph-
—insisted
well
hears the testimo-
ness’s demeanor as
him)
against
by jury
ic evidence
on a trial
big
ny.
opportunities are
ad-
I submit these
and,
respon-
sentencing,
accepted
at his
never
vantages
finding.
when it comes to fact
sibility,
prosecutors
called
"liars” and
Hitler;
compared them to
and the district
record,
pedophilia.
conflicting)
heterosexual
are
I think what
mental disorder:
I
legally enough
that this disorder was
have summarized is
expert
The
testified
justify
say compel
objective-
had chosen
do not
something
that Defendant
—I
—an
have,
something
ly
judge
that was
reasonable
to find that a
but was
“with-
(something
biologi-
years
imprisonment
“natural
of less than the 30
in” Defendant
cal”)
Defendant to have a ten- would be sufficient.
and caused
to sexual
dency
being
toward
attracted
I might
judged
However
prepubescent
behavior with
children.
weight
my
of the evidence and facts in
own
(This
submit,
evidence,
supports
I
the Dis-
sentence,
reckoning of the
I accept
best
to Defendant as a
Judge’s
trict
reference
that the record as a whole was sufficient to
a victim
“victim”:
the sense of
allow—as a matter of law—the imposition
biology.)
circumstance of Defendant’s own
something
than
less
the maximum sen-
expert
also testified that the disorder
involved,
tence.
Imponderables
and a
treatable,
was
this Defendant was
Judge
District
unique
has
access to and
treatment,
amenable for
Defendant’s
familiarity with the individual defendant.
naturally in
aging9
reduction
testoster-
—a
Here,
District
Judge
naturally
one and a reduction
in sex
thought out
a
and selected
sentence for
likely
helpful
drive—would
to his treat-
this case that
period
involved substantial
ment,
likely
and that Defendant was not
imprisonment,
including
a period of
Judge
be a recidivist.
District
who
(not hours,
months,
weeks or
expert
and heard this
witness could
saw
years of imprisonment) above the statuto-
the evidence. Given the entire rec-
credit
Then,
ry minimum.
to follow the term of
ord, this evidence is reasonable evidence to
imprisonment,
judge im-
than
maxi-
support a sentence of less
posed
supervised
lifetime of
release with
mum
the statute.
allowed
many special conditions10: a “substantial
course,
Supreme
Of
a number of elements make
restriction of freedom” as the
Still,
Gall,
up
accept
total record.
while I
it in
put
Court
Gall.
552 U.S. at
(some
that other facts and evidence
of it
statute (15 to was intended but- applied Gall minimum sentence from the years (30 sentencing powers the district courts’ tress maximum sentence years) 2422(b) (a to appellate powers limit the courts’ and to Cf., e.g., 18 U.S.C. years). essentially a factual issue what is recast allowing imprisonment for sexual offense princi- of these life); question into a law. Given 21 U.S.C. years ten jurisprudentially impor- it (a I believe 841(b)(1)(A) ples, allowing for drug offense review, clear of de novo or life). tant to steer So, the of ten imprisonment it, appeal in an something resembling sentencing discre for the exercise room of a the substantive-reasonableness about from the start markedly controlled tion is all, this record and Considering sentence. by Congress; statutory range set by the deci- Judge’s I defer to the District would therefore, that it harder it seems to me today’s and affirm the sentence sion far off the sentencing judge go case. seems even clearer rails. This observation here, where, Judge the District
to me
respect
I
and not without
dissent
imprison
impose lengthy
did
regret.
maximum, but neither did
ment: not the
(or
the minimum sentence
impose
he
BIRCH,
Judge, dissenting:
Circuit
hours, weeks,
merely
something
was
months,
year beyond the mini
one
adage
jurisprudence
time-worn
mum).
often lead to
law is
that hard facts
bad
I have
certainly applicable
this case.
a vari
support
I think the record would
sentencing
that had I been the
little doubt
sentences,
including some
ety of lawful
might
I
well have fashioned a differ-
judge
actually
heavier than the one
sentences
ent and harsher sentence for this defen-
Nevertheless,
imposed.
government’s
play
But the
here is the
dant.
decision
have failed to demonstrate to
prosecutors
respective
appellate
roles of the
court and
legitimate
that there is no
basis for the
me
appellate
court. Our
role is
actual sentencing
district court’s
decision.
properly constrained
the standard
applying
All
considered and
the def
things
required
to which we are
to adhere.
review
standard,
I
erential abuse-of-discretion
persuasively de-
Judge
As
Edmondson
imposed
cannot conclude that the sentence
application
scribes the
standard to
beyond the
borders of reason
outside
record,
compels
an affirmance of the
background,
For more
see United
able.
judgment
court’s
in this case.
(11th
Irey,
may a number of support reasonable sen- Moreover, judge tences, necessary this articulation is so should be able to articulate the ratio- appellate court can be satisfied justifies nale that the actual number of judge actually that the district considered years months or up make a defen- § how all of the relate to the factors sentence, dant’s whether that number is individual case. defendant’s within Sentencing or outside the Guide- A lines. reasonable sentence is one for
I previously explained why
impor-
it is
which
explanation
there is an
of how
judge’s
give
tant for district
reasons in
particular
length of the imposed
my
Docampo,
dissent
United States v.
corresponds
to the individual
(11th Cir.2009).
sentencing needs of
particular
de-
First, Congress explicitly mandated the
fendant.
example,
For
how
does
sen-
articulation of reasons:
years,
tence of fifteen
opposed
as
ato
years,
sentence of five or ten
twenty-
or
Congress requires the district court to
years
matter,
two
for that
serve the
open
“state in
court the reasons for its
general
needs of individual and
deter-
sentence,”
imposition
particular
of the
rence
addressing
while also
the nature
3553(c),
so,
doing
and before
the court
of the crime and the individual charac-
must consider each of the factors delin-
teristics of
given
the defendant
in a
3553(a)
§in
ap-
eated
to arrive at the
case? The number of
cannot be
propriate sentence.
simply by
determined
an individual
Second,
Docampo,
that was majority— line is that
The bottom credi- finding own of facts and
based on its disagrees simply
bility determinations — judge’s conclusion
with the district years followed a lifetime
seventeen appropriate is an sen-
supervised release Irey. Notably, majority real-
tence for man- any explanation not offer
ly does judge impose the district
dating imprisonment thirty years
sentence ever, extremely fact-intensive majority published even if this 1. The cites to numerous involving analysis can be based on the information con- unpublished cases various dif alone, appellate opinions consider- against in which the tained in ferent offenses minors any potential unwarranted sentenc- in ex ation of defendants therein received sentences disparity appellate ing is not a task for the thirty years suggest Irey’s cess of sen complete as the court to first instance tence of seventeen and one-half creates majority does in this case. disparity” that renders it un a “substantial Majority Op. at 1219-21. Look reasonable. Moreover, majority’s several of the cited length ing sentences various just legiti contain facts that could cases cases, Irey’s arguably in the cited sentence finding mately support a that those defen However, Congress presents disparity. did Irey similarly dants were not situated to avoid not command courts to support the that the thus do not conclusion "disparities” or even "substantial dis mere imposed unwar created an parities.” require What it did sentenc disparity. example, ranted For several ing the need to avoid unwar courts consider who, Irey, cases concern defendants unlike among similarly disparities situated ranted proceeded previously to trial. We have held 3553(a)(6). defendants. See 18 U.S.C. plead guilty and assist that defendants who Whether one defendant's sentence creates an ai;e similarly government not situated disparity unwarranted from other defendants e.g., proceed to trial. See Docam those who necessarily requires a court to un (holding po, F.3d at 1101 that a defen inquiry dertake a fact-intensive in the first similarly proceeded to trial was dant who place to determine whether the defendants plead co-conspirators situated to his who similarly See United States v. are situated. government guilty and and thus assisted (11th Docampo, 573 F.3d Cir. disparity between there was no unwarranted 2009) ("A disparity, well-founded claim of lengthy the defendant’s 270 month sentence however, apples being assumes that com substantially co-conspirator's shorter and his (citation omitted). pared apples.”) I be sentences). truly a court cannot assert that one lieve defendant’s sentence creates an unwarranted my Docampo: I also noted in dissent in As disparity from another or several defendants’ difficulty Appellate had no find- entirety the sen courts have without the benefit of asking ing [wheth- when tencing of all the defendants. How- unreasonableness records
1279 Plaintiff-Appellant, SCOTT, L. Richard ROBERTS, In Her Ca
Dawn K. Official Secretary
pacity as Interim of State of Florida, Defendant-Ap State
pellee, McCollum, Jr., Intervenor-
Ira William
Defendant-Appellee.
No. 10-13211. Appeals, States Court of
United
Eleventh Circuit.
July See, reasonable, enough punishment]. sentence automatically er a is lines are we e.g., Pugh, F.3d [United v.] States apply too—as a circuit that does not a rea- Cir.2008)] [(11th (finding probation presumption obligated sonableness —are possessor pornography of some child ask whether within-Guidelines insufficient). willing We be should likewise without scale. reasonable thumb on the that, it, in a to find case that warrants "a Thus, reiterating previously we what ‘greater within-Guidelines sentence than noted, "many there instances where the necessary’ objectives to serve of sen- range yield Guidelines will not a reasonable States], tencing,” Kimbrough [v. [552 United may ap- sentence.... some cases it 85, 91], [558], (quoting U.S. Guidelines; to defer propriate 3553(a)). appellate sentencing Our re- others, Hunt, United not.” States v. develop one-way view should not into (11th Cir.2006). F.3d upwards. rachet Just as the district court Docampo, F.3d at 1110-11. obligation the Guide- has an not to assume notes “[a] ly weight given held “[t]he court’s sentence need not ap- be the most factor is within the sound discre one, propriate only it need be a reasonable tion of the district court and we will not one” and because “we are to vacate the our judgment weighing substitute if, if, we are left with the relevant factors.” E.g., United States v.