Saturday, January 19, 2008

PORN AGAIN

As the Blog has observed, see Post of 11/29/07: Have You Hugged A Sex Offender Recently?, recently sex offenders fared pretty well in the circuit. Until now. In this most recent crop of cases, sex offenders lost three out of four, and the win was in a summary order, to boot. Here they are:

1. United States v. Hawkins, No. 06-4061-cr (2d Cir. January 16, 2008) (Winter, Straub, Sotomayor, CJJ) (per curiam)

In this case, the court rejected a double-barreled challenge to 18 U.S.C. § 2423(b), which makes it a crime to travel with the intent to engage in illicit sexual conduct, finding that the statute violated neither the Commerce Clause nor the First Amendment. It should be noted that there have been a few cases in other courts claiming that this statute impermissibly impinges on the constitutional right to travel interstate, but that issue remains open in this circuit.

2. United States v. Dupes, No. 05-5522-cr (2d Cir. January 9, 2008) (Walker, Calabresi, CJJ, Keenan, DJ)

Here, the court upheld the imposition of sex-offender-specific conditions of supervised release on a defendant who was charged with and convicted of fraud offenses only, but who had also, in a different case, sustained a contemporaneous conviction for a sex offense. The court also rejected a host of challenges to some of the specific conditions, although the court reviewed them only for plain error, since the particular conditions had not been objected to in the district court.

3. United States v. Lee, No. 06-5034-cr (2d Cir. January 18, 2008) (summary order)

This is the winner of the lot. In this apparent - the order does not specify what the defendant was actually convicted of - sex abuse case, the court vacated the sentence out of concern for the district court’s findings in connection with a vulnerable victim enhancement. Specifically, the district imposed the enhancement after concluding that the victim, who was home-schooled, led a “relatively simple and sheltered life.” The circuit was concerned that these generalized characterizations were not supported by the specific facts required under the enhancement. The sentencing judge also relied on a “double-hearsay statement in the PSR” that the victim had been abused in the past. This was insufficient to support a finding that the past abuse had occurred, and there was, in any event, no evidence to establish a correlation between any past abuse and the victim’s susceptibility to future abuse.

4. United States v. Bowles, No. 06-4319-cr (2d Cir. January 16, 2008) (summary order)

Here, the court upheld the imposition of lifetime supervised release on Bowles, who was convicted of distributing child pornography. This was a huge variance from the Guidelines, which recommended a three-year maximum. The sentence was procedurally reasonable, because the court properly weighed all of the statutory factors. It was also substantively reasonable, even though Bowles’ offense did not involve the actual sexual abuse of a child. The reasons given by the court - Bowles’ limited support network, his problems with “sexual deviance,” and his drug and alcohol problems - supported the sentence. The court did note, however, that under 18 U.S.C. § 3583(e)(2) Bowles has a statutory right to seek a reduction of his supervised release term in the future, if any of those factors change. Unless, of course, Congress repeals the statute.

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