Friday, February 06, 2009


United States v. Irving, No. 07-1312-cr (2d Cir. January 28, 2009)(Kearse, Sack, Raggi, CJJ)

Stefan Irving is a former physician who was convicted, after a jury trial, of child pornography offenses, and several other counts relating to his travel to Mexico and Honduras to engage in sexual acts with children. The district court sentenced him to 262 months’ imprisonment, the top of the Guideline range. A 2005 Second Circuit decision disposed of his trial-related claims. This opinion, which arose in the context of the district court’s decision to adhere to the original sentence after a Crosby remand, disposes of his sentencing claims.

Irving’s Guidelines claims are not particularly interesting. First, he unsuccessfully challenged the district court’s choice of Chapter 2 offense conduct guidelines, but the court’s choices were clearly correct under the relevant instructions in the Guidelines manual.

He also challenged the “vulnerable victim” enhancement, claiming that his victims’ vulnerability was already covered by the Chapter 2 enhancement for victims under the age of twelve. The circuit agreed with the district court that other aspects of Irving’s victims, apart from their age - they were homeless and were without “parental or other appropriate guidance” - made them unusually vulnerable.

Finally, the court, on its own, raised the question whether it violated the Double Jeopardy Clause to sentence Irving for both possessing and receiving the same images of child pornography. The court recognized that two circuits have held that this is a double jeopardy violation, and also noted that, so far, the Second Circuit has ducked the question. Here, the court did so again, finding that Irving did not satisfy the plain error standard.

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