Child Pornography Sentences – The Bistline Twist

For those of you who closely follow this blog, you might remember one posted on July 3rd entitled “Substantive Review on Steroids??” In that post, the Sixth Circuit’s decision in Bistline II was the topic. Bistline was convicted of possession of child pornography and originally sentenced by Judge Graham to serve one (1) day in jail, ten (10) years of supervised release and thirty (30) days of house arrest. This sentence was substantially below the sixty-three (63) to seventy-eight (78) month range called for under the guidelines. The government appealed and the Sixth Circuit reversed, giving us Bistline I 665 F.3d 758 (6th Cir. 2012).

On remand, Judge Graham chronicled new §3553(a) factors that developed from the time sentence was originally imposed and remand; relying on these, he imposed a one (1) day jail sentence, three (3) years of house arrest and a ten (10) year term of supervised release. After the AUSA objected to the sentence as being substantively unreasonable and contravening Bistline I, Judge Graham forcefully replied: “If I have got to send somebody like Mr. Bistline to prison, I’m sorry, someone else will have to do it. I’m not going to do it.”

The government appealed again and the Sixth Circuit found the sentence imposed on remand substantively unreasonable, remanded the case for resentencing and it took the case away from Judge Graham, giving us Bistline II 720 F.3d 631 (6th Cir. 2013). A petition for a writ of certiorari is pending in the Supreme Court in Bistline II.

Against this backdrop Attorney Joseph E. Scott, of The Scott and Nolder Law Firm, recently represented John Childs in a child pornography possession case which was assigned to Judge Graham. Childs pled guilty pursuant to a plea agreement calling for an agreed on sentence, under Rule 11(c)(1)(C). The parties agreed that a sentence of six (6) months imprisonment was appropriate under the circumstances, which was far below the thirty-seven (37) to forty-six (46) month guideline sentence that otherwise applied. Childs’s case was called for sentencing on September 6th implemented the sentencing agreement that was part of the plea agreement.

Almost a month later, Judge Graham filed a written order that is one for the ages given his role in both Bistline I and II. The order starts out noting the agreed on sentence was “one sixth of the lowest sentence recommended by the United States Sentencing Guidelines.” Judge Graham catalogued Childs’s case as “disturbing” not because of the nature of the crime or the agreed on sentence; instead, that adjective was attached because in light of the Bistline decisions, he “would not have been free to select such a sentence (6 months) without the government’s agreement.”

For the next five (5) pages, Judge Graham convincingly demonstrated how the Bistline decisions, requiring sentencing judges to give the child pornography guidelines “substantial deference” and how sentencing decisions are subjected to “close scrutiny” on appeal, and Judge Graham accepted the plea agreement and contravened Booker, Kimbrough, and Rita. In effect, Judge Graham concluded that the Sixth Circuit’s jurisprudence “blurs the distinction between mandatory and advisory (guidelines) by requiring more deference to congressionally created guidelines than that accorded to Sentencing Commission-created guidelines.”

In Kimbrough, the Supreme Court relied on the Sentencing Commission’s criticism of the crack guidelines as a reason for diminished deference for those guidelines. Judge Graham noted that the Commission was equally skeptical of the child pornography guidelines in a lengthy report filed in December 2012 as well as testimony by the Chair of the Commission in March 2013. Nonetheless, these developments were ignored by the Sixth Circuit in Bistline II which Judge Graham found “inexplicable.”

Judge Graham concluded by noting the sad state of the Sixth Circuit’s law in child pornography cases:

[I]t is a tragic irony that sentencing judges in the Sixth Circuit

are required to give enhanced deference to guidelines which the

independent Commission, relied upon so heavily by the Supreme

Court in upholding the Guidelines, has now declared flawed and in

need of reform. It is even more tragic that offenders in this circuit

will have to rely on prosecutorial discretion, not judicial discretion,

in order to receive a just and fair sentence in these cases.