SEVENTH CIRCUIT UPHOLDS CHILD PORNOGRAPHY SENTENCE

The vast majority of people who come before our criminal courts at one point or another face sentencing. Either they plead guilty, often as part of a plea agreement or they are found guilty after trial. Particularly in the Federal Courts sentencing is a complicated and drawn out procedure. As a result many of the cases that are decided on appeal involve sentencing issues. As a general rule if one pleads guilty and admits the charged offense one cannot allege innocence on appeal. Thus the only issue on appeal in most cases where there is a guilty plea is the sentence imposed.

In United States v. Pape the Seventh Circuit Court of Appeals considered the correctness of a sentence in a child pornography case.

Jason Pape was an outstanding member of his community. He was a businessman and he was active in his church. He took excellent care of his children and of wife’s children she had by a prior marriage, one of whom was autistic. He had no criminal record.

There is no evidence that he mistreated his children or abused any children. But he was indicted after his daughter reported to her school that she had accidentally run across child pornography on Pape’s computer. He plead guilty and was sentenced to 90 months in prison and twenty year of supervised release. The sentence was below the advisory guideline range of 97 to 120 months.

Appellate consideration of a sentence involves two issues. The first question is whether the sentencing court followed the correct procedure and the second question is whether the sentence is reasonable or whether it is an abuse of discretion.

There was no question raised about the procedure followed by the sentencing judge. But Pape raised four issues on appeal regarding the reasonableness of the sentence. First he claimed that the court did not take sufficient consideration of his parenting responsibilities. While the court must consider non-frivolous issues raised by the defendant the weight to be given to each issue is up to the court. It is clear that the court considered his parenting responsibilities and while the court’s language is slightly ambiguous at times it clearly took the responsibilities into consideration.

Second, Pape argued that the court failed to consider sections of the Guidelines that authorize consideration of extraordinary childcare responsibilities but these sections do not apply to child pornography cases.

The third issue raised by Pape is that the sentencing court failed to consider his argument that the child pornography guidelines “do not reflect the result of careful study based in empirical analysis and national experience.” The Seventh Circuit found that by sentencing Paper after considering the Guideline the sentencing judge implicitly rejected the defendant’s argument.

Pape’s final argument was the vast difference between the various District Courts in Wisconsin. But since the sentence below Guidelines and Pape did not provide any explanation for the variation the Seventh Circuit found that the argument lacks substance. It affirmed the sentence.