In U.S. v. Irey, No. 08-10997 (July 29, 2010) (en banc), the Court reversed as substantively unreasonable a sentence of 210 months, below the Guidelines advisory sentence (and statutory maximum) of 360 months, because the district court failed to adequately punish a sex offender convicted of coercing minors to engage in sexually explicit conduct outside the United States, in violation of 18 U.S.C. § 2251(c).
The Court noted that, contrary to other Circuits, it found no “parsimony principle” in 18 U.S.C. § 3553(a)’s instruction to impose a sentence “sufficient, but not greater than necessary,” to achieve the listed sentencing purposes. The Court stated that the statute is “result neutral.”
The Court noted that the government did not appeal any of the district court’s findings of fact. The Court therefore assumed that these findings were correct. But if found a number of legal errors in the district court’s weighing of the sentencing factors.
The Court faulted the district court for stating that Irey was a “victim” when he was a predator. This finding “tainted its weighing of the § 3553(a) factors.”
The Court also faulted the district court for stating that pedophilia was an illness, noting that just as there is a line between alcoholism and driving under the influence, there is a line between pedophilia and child molestation. The district court erred in reducing Irey’s sentence because Irey’s offense was only partly volitional, and this error warranted “closer review” of the sentence.
The Court also faulted the district court for relying on a finding that Irey was a good family man, and good to his community. The Court equated this to finding that Ted Bundy was a valuable member of his community, and that “but for his taste for human flesh and how he satisfied it, Jeffrey Dahmer was not so bad.” The Court noted that Irey’s family support for him, while admirable, was not supported by the record. The Court also faulted the district court for relying on Irey’s age, finding his age no different from those of other persons in middle age convicted of serious crimes.
The Court also noted the “horrific” nature of the multiple crimes, pointing out that the 210 months sentence would amount to only 4 months and a week punishment for each of the 50 children Irey raped, sodomized or tortured.
The Court pointed out that the 210 months was just 30 months more than Irey would have received had he been convicted of taking a single obscene photograph of a minor.
Turning to deterrence, the Court faulted the district court’s “idiosyncratic doubts” about whether pedophiles could be deterred from committing crimes. The Court noted these views conflicted with the policy judgments of Congress. The Court added that age, for this offense, did not reduce the risk of recidivism.
The Court noted that the district court imposed a lifetime of supervised release, but stated that supervised release does not offer the level of protection of incarceration.
The Court noted that the Guidelines sentence was life, reduced to 30 years on account of the statutory maximum. The Court further noted a number of Guideline provisions that counseled against sentence reductions based on some of the factors the district court cited, for example, the instruction not to depart downward on account of diminished capacity when the offense is violent. The Court found that the district court “ignored” the advisory Guidelines, contrary to § 3553(a) instruction that they be considered.
Turning to sentencing disparity, the Court reviewed a number of cases, and found that Irey’s sentence fell below sentences for other child sex offenders. The disparity resulted from the fact that Irey received a reduction that he should not have received.
The Court disagreed with the district court that its sentence would promote respect for the law. “Nothing less than the advisory guidelines sentence of 30 years, which is the maximum available, will serve the sentencing purposes set out in § 3553(a).”
