In U.S. v. Pugh, No. 07-10183 (Jan. 31, 2008), in its first sentencing decision applying the Supreme Court’s recent Gall and Kimbrough holdings, the Court held that the district abused its discretionary by imposing a probationary sentence on a defendant convicted of possession of images of child pornography.
Despite a low-end recommended guideline range of 97 months, and supervised release, the district court sentenced Pugh to five years probation. The district court held two sentencing hearings, and concluded that Pugh had a low-risk of recidivism.
The Court faulted the sentencing court for relying on only one § 3553(a) sentencing factor – the history and characteristics of the defendant -- which suggested an unreasonable sentence because of the failure to consider "all" of the § 3553(a) factors. The Court faulted the sentencing court for not giving due emphasis to the fact that the some of the images were "grotesque," and for focusing on the defendant’s motivation, when his willfulness in committing the offense was undisputed.
Turning to the § 3553(a) factors, the Court found that the sentencing court had no adequately considered the "general deterrence," purpose of § 3553(a) – a factor particularly important in combating "the child pornography market." The Court also noted the "devastating" impact of child pornography on the children, and pointed out how Congress has progressively stiffened the penalties for child pornography. The district court’s sentence, therefore, "did not reflect the seriousness of the crime." The Court noted that the defendant himself was willing to submit to a lifetime of supervised release, a much greater period of supervision than five years of probation. This called into question whether adequate rehabilitation could be achieved.
The Court also noted that the sentence deviated sharply from the Guidelines sentence of 97 months at the low-end. This "major" departure was not supported by the sentencing court’s mere reliance on Pugh’s characteristics and motive. In addition, unlike the crack guidelines at issue in Kimbrough, the child pornography guidelines did not suffer from "criticisms." The Court also noted that its caselaw showed that offenders like Pugh typically receive much harsher sentences. Thus Pugh’s sentence created a disparity. The Court recognized that there might be cases where a non-custodial sentence would be reasonable for a child pornography offender, but this was not one of them.