Court Reverses Downward Variance in Possession of Child Pornography Case

United States v. Perrin, No. 06-30115 (5th Cir. Feb. 9, 2007) (Higginbotham, Smith, DeMoss)

Perrin was convicted of receipt and possession of child pornography. He possessed thousands of images and videos, some of which were especially bad. His guideline range was 108 to 135 months (which included a one-level substantial assistance departure), and the statutory mandatory minimum was 60 months. Perrin's supervised release range was five years to life, and the guidelines recommended the maximum life term.

The district court imposed a non-guideline sentence of 60 months, to be followed by a 10-year term of supervised release. It gave four reasons for the variance: 1) Perrin was a consumer of child pornography, not a producer, and the guidelines for possession are disproportionate to those for production; 2) "Perrin was not a risk to the community and that there was no indication that he had ever 'attempted to perform anything similar to the visual depictions that he possessed[;]'" 3) "Perrin was aware of the consequences of his conduct, and the court was impressed that he had voluntarily begun counseling[;]" and 4) the ten-year term of supervised release was "onerous" and "double the typical amount of time spent under supervision." Slip op. at 2. The Government appealed.

The court held that Perrin's sentence was unreasonable under the first two factors of the Smith test for non-guideline sentences. See United States v. Smith, 440 F.3d 704, 708 (5th Cir. 2006)). First, it did not account for factors that should have received significant weight, namely the "nature and circumstances of the offense" and "the need for the sentence imposed to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense." Slip op. at 4 (quoting 18 U.S.C. § 3553(a)(1), (2)(A)).Here's what the court said about that:

Based on the content and numerosity of the images possessed by Perrin, this crime falls at the more severe end of possession of child pornography cases. The court did not articulate sufficiently how the severity of the crime factored into its decision to depart from the guideline range and impose the minimum sentence allowed by law, so the sentence fails to advance sufficiently the objectives stated in § 3553(a)(2)(A)-(B).

Slip op. at 5.

Second, the district court "[gave] significant weight to . . . irrelevant or improper factor[s]." The district court's reliance on the fact that Perrin was a consumer rather than a producer was improper because the guidelines also take that distinction into account by punishing production more severely than possession, and because a departure isn't warranted on the ground that a defendant didn't commit a more severe crime that he actually did. It was also improper for the district court to consider Perrin's contrition and participation in counseling: "A defendant's contrition and commencement of counseling are already accounted for, according to the guidelines manual, in the acceptance-of-responsibility reduction and thus are inappropriate as a basis for a further sentence reduction." Slip op. at 6. Finally, the ten-year supervised release term was already substantially lower than that recommended by the Guidelines, so it was "inappropriate to use such a term of supervised release as a basis for departure from the guideline range." Id.

Needless to say, the court's opinion reflects a very guidelines-centric view of sentencing. We'll see if the Supreme Court agrees with that approach in Claiborne and Rita.