In U.S. v. Moriarty, No. 04-13683 (Nov. 1, 2005), the Court affirmed a conviction but reversed in part a sentence of a defendant who pled guilty to three counts of child pornography-related offenses.
The Court recognized that the district court failed during the plea colloquy to fully obtain a guilty plea from Moriarty, and to inform him of certain waivers which accompanied the decision to plead guilty. However, reviewing the matter to see if Moriarty’s "substantial rights" were affected, the Court noted that Moriarty responded "Because I am guilty" to the court’s questionind. Further, Moriarty could not show a "reasonable probability" that, but for the omitted plea information, he would not have pled guilty.
The Court rejected the argument that Booker error required reversal of Moriarty sentence. The Court pointed out that the district court at sentencing expressed intent to take Moriarty "out of society" by imposing the statutory maximum 240-month sentence and a lifelong term of supervised release. This indicated that Moriarty would not have received a lesser sentence under the advisory Guideline regime.
The Court also rejected the challenge to a USSG § 2G2.2(b)(4) five-level enhancement for a pattern of activity involving the sexual abuse of a minor (whether or not this conduct occurred during the course of the offense of conviction). At sentencing, one of Moriarty’s neighbors testified to a number of facts indicating that on one occasion, Moriarty had broken into her six-year old son’s bedroom, sexually assaulted him, and stolen his pull-up pajama pants. The Court found that this evidence sufficed to support the enhancement.
The Court also rejected the challenge to the district court’s refusal to grant a downward adjustment for acceptance of responsibility, despite Moriarty’s guilty plea. The Court noted that Moriarty contested the § 2G2.2(b)(4) enhancement, and that this was a basis for denying the acceptance of responsibility adjustment.
The Court rejected an Eighth Amendment challenge to the lifelong term of supervised release. The Court noted that Moriarty was 21 when he committed the offenses, but, regardless of his moral responsibility, the need for supervised release was to fulfill the goal of rehabilitation, and was consistent with the legislative history of the statute.
The Court, however, agreed with Moriarty that the "general sentence" of twenty years, which did not specify a specific count of conviction, and which exceeded the 10-year maximum for one count, was invalid . The Court vacated the sentence for "clarification" of the sentence. Similarly, the lifelong term of supervised release imposed as part of a general sentence was invalid, because the district court did not specify the count of conviction which supported this term of supervised release, and it exceeded the maximum for one count of conviction.
