Sunday, May 23, 2010

Deconstruction Project

United States v. Dorvee, No. 09-0648 (2d Cir. May 11, 2010) (Cabranes, Parker, CJJ, Underhill, DJ)

In this first-of-a-kind opinion, the court (1) held that a within Guideline - albeit statutory maximum - sentence was substantively unreasonable and (2) found that an offense Guideline other than the crack Guideline was not the product of the Commission’s traditional empirical role and hence, under Kimbrough, was not entitled to deference.

Background

While chatting online with undercover officers posing as teenage boys, Justin Dorvee sent them computer files containing child pornography. He was arrested when set out to meet one of the boys. A search of his home revealed several thousand still images and more than 100 videos containing child pornography. He ultimately pled guilty to one count of distribution of child pornography.

Under a correct application of U.S.S.G. § 2G2.2, which prescribed a base offense level of 22 plus enhancements for such things as the number and content of the images, he faced a sentencing range of 262 to 327 months’ imprisonment. However, since the statutory maximum sentence was 240 months, 240 months became his Guideline range.

At sentencing, Dorvee introduced medical evidence intended to mitigate that sentence, including evidence that he was a compulsive collector and had serious personality disorders, but was “not a predator” and would respond well to treatment. The court expressed sympathy for him, but still concluded that he was a “pedophile” who would have sex with a younger boy if he could, even if he would not initiate the behavior. After reviewing the statutory factors, the court sentenced Dorvee to 240 months, less six months and fourteen days of uncredited time he had served in state court, for a total sentence of 233 months and sixteen days.

The Appeal

The circuit vacated the sentence, finding it to be both procedurally and substantively unreasonable.

1. Procedural Error

The procedural error was the district court’s apparent view that the Guideline range was still 262 to 327, and not, per U.S.S.G. 5G1.1(a), 240 months, along with its erroneous corollary conclusion that the higher range was the benchmark for any variance.

This error was not harmless - it “carried serious consequences” for Dorvee. If the district court intended to impose a sentence “relatively far below the guideline,” as it said it did, Dorvee “did not receive the benefit of such an intention.” Where “the district court miscalculates the typical sentence at the outset, it cannot properly account for atypical factors and we, in turn, cannot be sure that the court has adequately considered the § 3553(a) factors. That is what appears to have happened here, and constitutes procedural error.”

2. Substantive Error

The court also deviated from its usual practice of refraining from reviewing for substance until the procedural errors have been corrected, and instead “reach[ed] both the procedural and substantive reasonableness of the sentence [since it found] both types of error.”

Here, even accepting the need for punishment and the requirement that it defer substantially to the district court’s judgment, the court found the sentence to be substantively unreasonable.

First, the district court placed unreasonable weight on its assumption - unsupported by the record evidence - that Dorvee was likely to actually sexually assault a child. The district court’s explanation of the need for deterrence also “ignored the parsimony clause,” offering no “clear reason” why the maximum sentence, instead of some lower sentence, was required to deter an offender like Dorvee.

Next, the circuit took issue with the child pornography Guideline itself, calling it “fundamentally different from most” and noting that “unless applied with great care, [it] can lead to unreasonable sentences that are inconsistent with what § 3553 requires.” With this introduction, the court then systematically deconstructed U.S.S.G. § 2G2.2.

It began by noting that the Sentencing Commission “did not use [an] empirical approach in formulating the Guidelines for child pornography.” Rather, it systematically increased the penalties based directions from Congress, even as it “openly opposed these Congressionally directed changes.”

The court went on to agree that the enhancements included in § 2G2.2 “cobbled together through this process routinely result in Guidelines projections near or exceeding the statutory maximum, even in run-of-the-mill cases” because the base offense level has been increased from 13 to 22 and the enhancements “apply in nearly all cases.” As a result, “adherence to the Guidelines results in virtually no distinction between the sentences for defendants like Dorvee, and the sentences for the most dangerous offenders who, for example, distribute child pornography for pecuniary gain and who fall in higher criminal history categories.”

Under Kimbrough, a court “may vary from the Guidelines range based solely on a policy disagreement with the Guidelines, even where that disagreement applies to” many offenders or offenses. “That analysis applies with full force to § 2G2.2.”

The opinion ends with a message to district judges, encouraging them to “take seriously the broad discretion they possess in fashioning sentences under § 2G2.2 ... bearing in mind that they are dealing with an eccentric Guideline of highly unusual provenance which, unless carefully applied, can easily generate unreasonable results.”


Labels: , ,

5 Comments:

Blogger doron said...

here you can find Viagra the best solution for ED treatment ,
Viagra every 6 hours every day. Buy Viagra

yes or no Viagra

There are many online pharmacies were you can find

Viagra
online and prices will be much cheaper
, Generic Viagra more over you can always Viagra On the street, Viagrafor money to
Buy Viagra Online is the best.viagra no prescription

In adition you can use Cheap Viagra you can buy Cheap Viagra online yes now you can buy Cheap Viagraor you can look forCialis for the same and some times Buy Cialis a longer lasting result!

Cialis in fact is similar to viagra in it’s affect.
Cialis is one of the most effective meal
Buy Cialis Online enhancement medications online ! Buy Cialis Online with most online pharmacies. Buy Phentermine Online it is a worldwide known drug Buy Phentermine Online
can be found on the web on numerous locations.
Buy Phentermine Online

More over yes now Buy Phentermine Online is known for it’s results
Xanax Online
is an anti anxiety medication Xanax is a short-acting drug
Buy Xanax is used to treat anxiety Buy Xanax online. best online pharmacy for you.

Vicodin Online narcotic analgesic product

Buy Vicodin relieve moderate to severe pain
Viagra Alternative You can find Buy Vicodin and
Buy Valium to treat anxiety disorders. Ultram on sale Ultram best price Ultram cheap pharmacy Ambien best price Cialis online today Cialis is known for it’s results Valium online sale Valium online sale Buy Valium
today Buy Xanax Online cheap prices Buy Xanax online today.

August 1, 2010 at 4:41 AM  
Blogger doron said...

Many pepole use Ambien Online Today.
viagra no prescription the popular insomnia relief,
viagra without prescription also no you can buy Cialis without prescription
yes it is true Cialis without prescription

is now available Viagra Online
Find the most competitive online Ambien
Online Pharmacies Ambien lowest prices Viagra is a semi-synthetic opioid Buy Phentermine Online naturally occurring opiates Buy Hydrocodone can be found online Hydrocodone is very effective !

Hydrocodone is an FDA approved medication.

Oxycodone narcotic pain-reliever.

Oxycodone Online for sensation of pain.

Oxycodone should be stored between 15 to 30 C
Buy Oxycodone relief of moderate to severe pain.
Oxycontin tablets is 5 to 30 mg every 4 hours. Buy Oxycontin
narcotic pain-relievers Oxycontin may lead to increased Levitra is formulated as orange Phentermine cross debossed on one side
Ambien only for you Ativan here also Oxycontin best price Adderall online sale Loeazepam for you Hydrocodone for pain Hydrocodone on sale today Buy Hydrocodone Online here. Buy Cialis online today Buy Phentermine Online big sale Buy Phentermine in UK pharmacy Buy Cialis cheapest prices Buy Valium today Hydrocodone Online pharmacy Adipex best offers Ambien online pharmacy Meridia best offer Buy Meridia trusted source Meridia online options Meridia best pharmacy Lorazepam best offer Alprazolam best choice accutane online here.

August 1, 2010 at 4:55 AM  
Blogger doron said...

In some cases Viagrais the best solution
Viagra Alternativemany people use
Buy xanax
and other try Xanax
you can Buy xanaxand also try to use
Phentermine
yes many pepole try
Buy Phentermine Online
and many others use
Propecia
another drug you is
Cialis also called a hypnotic.
Cialis affects chemicals in your brain Buy Phentermine Online unbalanced and cause sleep problems
cialis that causes
cialis dose-related depression
Alprazolam
is useful in treating anxiety
cialis and muscle spasms
cialis Brand name is
Phentermine A generic version
Percocet is a combination of
viagra is a Schedule
Buy Percocet to discuss what
Phentermine These would include
Percocet recreationally rather than
Buy Phentermine Online either an Addict
Valium yes this is the best website for
Valium here you can purchase
Valium online without prescription,
Valium from USA pharmacy
Valium for Anxity, or
Buy Phentermine Online on how best to deal
Phentermine No prescription specifically developed to allow Phentermine No prescription for office-based treatment Buy Ativan is in a group of drugs
Ativan is used to treat anxiety disorders.
Klonopin is in a group of drugs called benzodiazepines
Xanax online offers
Xanax online sale
Ambien best price
Ambien best choice Ativan also here Ativan No Prescription Klonopin best price Xenical best prices Ultram online pharmacy Ambien Online best price.

August 1, 2010 at 4:58 AM  
Blogger doron said...

Clonazepam
affects chemicals Clonazepam is used to Klonopin if you Zolpidem prevents the Propecia use by men only Diazepam not be used cialis is pain reliever.
Cialis no prescription is the best.
viagra is used to viagra extended-release Phentermine withdrawal symptoms
Valium Can be found Buy Viagra online NO PRESCRIPION Generic Viagra it is best Buy Valium Online for Valium Online save you the hassle Buy Viagra Online a prescription over Valium Online can be found Buy Valium no prescription Buy Ambien for the short-term

Buy Levitra for the
Buy codeine narcotic pain-reliever .
codeine is morphine
codeine in the brain Acomplia new class Acomplia Cannabinoid-1 Phentermine Without Prescription online buy Xanax best prices Xanax worldwide delivery Xanax for the best Xanax at discount Xanax for anxity. Vicodin cheap prices Hydrocodone best solution Hydrocodone against pain Levitra online sale Tramadol online here Tramadol best prices Adipex online pharmacy Ambien right now
Ambien best prices Ambien best prices Buy Ambien Online discount pharmacy Buy Ambien save money Buy Adipex Online today Tramadol cheap online Vicodin online today Valium Online without prescription Cheap Cialis onlline today Cheap Cialis usa

August 1, 2010 at 5:02 AM  
Anonymous adobe acrobat x pro download said...

Good luck to you then!

November 10, 2011 at 3:59 PM  

Post a Comment

<< Home