The Eighth Circuit Court of Appeals upheld the twenty month sentence of Michael Lee Knight for failure to pay child support. The Court found that he failed to pay $35,833.13 in child support and that he owed $78,565.85 (including interest?) in restitution.

Knight claimed that the trial court did not take into sufficient consideration “his poverty, history of sexual and physical abuse, struggles with drug addiction and bipolar disorder, incarceration while he was to pay child support, and efforts to care for his current wife, mother, children and stepchildren.”

Knight plead guilty to the offense of not paying child support. The appellate court pointed out that its responsibility was limited to determining whether the District Court abused its discretion in sentencing Knight to twenty months. The Sentencing Guidelines indicated a sentence of 30-37 months. But since the maximum sentence for the offense is two years the District Court sentenced Knight to twenty months. The Eighth Circuit pointed out that the District Court need not address every possible sentencing issue on the record. Sentences within the Guidelines are presumptively valid and according to the court it is highly unlikely that that any sentence below the Guidelines is an abuse of discretion.

What I don’t get is what possible benefit is there to society of placing a person in prison for failing to pay child support. Certainly during the period of the sentence no child support is going to be paid. Knight is already on Social Security Disability so his ability to pay child support must be questioned. Even if he can work the prison commitment will make it more difficult when he gets out for him to get a job and pay child support. We have long ago given up debtor’s prisons. We cannot put him back in prison for failing to pay the restitution unless he has the ability to pay the restitution and fails to do so.

Percy Dillon was convicted of various drug offenses including some involving rock cocaine (also known as crack) in 1993, He was sentenced under the mandatory guidelines that were in effect at that time to 322 months in prison. At sentencing the judge said that if he had a choice he would sentence Dillon to five years but the guidelines left him with no choice.

In 2005 the Supreme Court in United States v. Booker found the mandatory guidelines an unconstitutional violation of the Sixth Amendment right to have facts used to aggravate a sentence found to be true beyond a reasonable doubt by a jury. As a result the guidelines became advisory.

In 1987 the Sentencing Commission set guidelines for the sentencing of Federal offenses. though widely criticized the guidelines, based upon drug quantities treated rock cocaine 100 times as harshly as powder cocaine. In other words, two people, one convicted of possessing 10 grams of rock cocaine and the other convicted of possessing 1000 grams of powder cocaine got the same sentence.

In 2007 the Sentencing Commission attempted to alleviate the problem by decreasing by two levels the penalty for rock cocaine. Thereafter the ratio was approximately one to twenty. The following year the Commission gave judges the power the power to make the change retroactive. But judges were only allowed to modify the sentence in so much as the former sentence did not comply with the new guidelines.

Dillon claimed that he should be resentenced, not only to take into account the change in the guidelines but also to take into effect the now voluntary guidelines and other corrections in his sentence. He claimed that under Booker the mandatory guidelines are unconstitutional and he should get the five year sentence the judge wanted to give him at his original sentencing. According to Dillon to merely reduce the guidelines by two levels maintained the mandatory guideline and therefore violated Booker.

But the Supreme Court held otherwise. In the majority opinion by Justice Sotomeyer, the court held Booker was was not violated. The general rule is that “A federal court . . . may not modify a term of imprisonment once it has been imposed.” However Congress imposed an exception to the rule in the Sentencing Reform Act of 1984 to allow the Sentencing Commission to reduce the sentence of inmates after a significant reduction in the guidelines. But the reduced sentence can only bring the sentence into line with the new guideline. Therefore, since Booker is not retroactive Dillon’s sentence can be modified to reduce it by two levels to bring it into line with the current guidelines but it cannot be changed in such a manner as to take into effect the Booker decision.

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.

Catherine Miller plead guilty in Federal Court to crossing state lines to have sex with a minor. The presentence report recommended a within guidelines sentence of between 70 and 87 months. However the court sentenced her to 120 months.

The Sentencing Guidelines as originally passed were considered mandatory and judges had only a limited ability to deviate from them. But in United States v. Booker the Supreme Court found the guidelines to be advisory. While the courts have the ability to deviate from the Guideline deviations are limited and must be reasonable.

At sentencing and on appeal Miller objected to the courts adoption of the Probation Department’s recommendation that that the sentencing guidelines be enhanced by an undue influence enhancement. However such enhancement, while subject to rebuttal are required in cases where there is an age difference of over ten years. Neither the trial court not the Seventh Circuit found that the enhancement had been rebutted despite some evidence that the juvenile had prior sexual experiences and seemed open to a romantic relationship with Miller.

The second issue on appeal was the government’s use of surprize evidence at the sentencing hearing. Specifically, the government introduced photo albums showing Miller with other minors. When Miller’s attorney objected, the court gave him a five minute recess to talk to his client. He said thank you and did not further object. Therefore the appellate court found that Miller waived any objection on appeal.

The final issue was the fifty percent upward deviation from the guidelines. The trial court based its decision on the high rate of recidivism among sex offenders. The appellate court rejected the finding and returned the case to the trial court for resentencing. First it found that if there is a high rate of recidivism it applies to all people charged with the crime and the Sentencing Commission would have taken this into consideration in writing the guidelines. Second it found there was no evidence at the sentencing hearing that supported a belief in a high rate of recidivism and there is evidence to the contrary. Therefore it reversed the sentence.

This is the first in a series of posts on United States v. Sattar (Stewart; Yousry). Lynne Stewart is a well known New York City criminal defense attorney. She represented Sheikh Omar Ahmad Ali Abdel Rahman who was charged with planning the 1993 bombing of the World Trade Center.

Rahman was convicted and sentenced to life in prison. While in prison he was considered a high security risk and was subject to “Special Administrative Measures” (SAMs) to prevent him from communicated with outside terrorist organizations. Stewart, along with Mohammed Yousry, and Abdel Sattar were convicted of violating the SAMs by holding a press conference in which Steward sent a message to the Sheik’s supporters in Egypt.

Tuesday the Second Circuit Court of Appeals ruled on the defendant’s appeal. The Court upheld the convictions and returned the case to the trial court for reconsideration of the sentence which was considered to be unusually mild. The primary opinion is 125 pages. Including concurring opinions the decision is 191 pages. Over the next several days we shall consider the Court’s opinion. Today we will look at the section dealing with Stewart’s sentence.

Congress passed mandatory sentencing guidelines for Federal criminal cases. But the Supreme Court ruled that the sentencing guidelines can only be advisory. Under the current scheme judges must first determine what the sentence would be under the guidelines and then provide a reason for sentencing to a non-guidelines sentence. Therefore the trial judge, John G. Koeltl, determined Stewart’s guidelines. He stopped when he got to the maximum for the offense, thirty years. But he decided to give her an out of guidelines sentence. He sentenced her to 28 months which of course is significantly below the guidelines. He gave a number of reasons. First the terrorist charges required that she be given a criminal history category of VI. But since she had no record he found that the Category VI was unreasonable. Second the trial court found that Stewart was unlikely to repeat her crime since she will lose her membership in the state bar, Third the court found that Steward personal characteristics are exceptional. She has spent her career representing the poor and the downtrodden often as a court appointed attorney. Fourth, the court took into consideration her health. She is a cancer victim and as a result her prison time is likely to be more difficult that for the average person.

The appellate court remanded the case to the trial judge and asked him to consider two factors which he did not consider since they would have put the sentence above the maximum sentence. The government alleges that when Stewart took the stand in her own defense she committed perjury. It also alleges that she abused her membership in the State Bar to violate the law. While these factors may not have been able to increase the guidelines the appellate court thought they should have been considered in determining whether to go outside the guidelines. Presumably after the trial court considers these factors the Second Circuit will reconsider the appeal and the government’s cross appeal.

The Second Circuit ordered the trial court to remand Stewart and revoke her bail on appeal. This seems rather strange in that the appeal will likely return to the Second Circuit and may yet be considered by the Supreme Court. The trial court is generally in a better position to determine whether or not to revoke Stewart’s bail on appeal and the appellate court should not have gotten involved in the issue.

In our next post we shall consider some of the other issues raised by the appeal.

In a series or regional meetings the United States Sentencing Commission has heard testimony that the Sentencing Guidelines for possession of child pornography are too high. According to an article in the National Law Journal, several judges testified at a Chicago meeting that guidelines for possession as contrasted to guideline for conveying or manufacturing child pornography are too high.

According to Chief Judge Gerald Rosen of the Eastern District of Michigan the guideline for the individual who receives a single video on-line may be greater than the guideline for the individual who repeatedly rapes a child over a period of time. Chief Judge Frank Easterbrook of the Seventh Circuit Court of Appeals pointed out that while a bank robber may get ten months a person charged with downloading child pornography may get 480 months.

The factors that judges must consider in sentencing an individual, for possession of pornography under the Sentencing Guidelines are part of the problem. For example the use of a computer to possess child pornography or the use of file sharing will significantly increase a sentence. Judge Rosen stated that the commission might consider volume of the pornographic material instead of the technology used to possess it.