Turner: Affirming 300-month sentence for child pornography possession

In U.S. v. Turner, No. 09-15074 (Nov. 17, 2010), the Court affirmed a 300-month sentence imposed on a defendant convicted of receiving child pornography, in violation of 18 U.S.C. 2252(a)(2), and possessing child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B).

The Court rejected the argument that the five-level enhancement for engaging in “a pattern of activity involving the sexual abuse or exploitation of a minor” should not have applied. The Court noted that Turner molested a very small child, and was convicted of first degree sexual abuse in 1990. The Court noted that the Guideline did not require a connection between the past sexual abuse and the current offense. Here, the evidence established a pattern because Turner abused the child “numerous times.” The fact that the sexual abuse was remote in time did not preclude it from being a basis for the USSG § 2G2.2(b)(5) enhancement.

The Court also found the sentence to be substantively reasonable. The 300-month sentence was a 90-month variance above the high end of the Guidelines. The Court noted that the offenses were “extremely serious” because receiving and possessing child pornography encourages the victimization of children. But cf., e.g., U.S. v. Grober, __F.3d __ (3rd Cir. Oct. 26, 2010) (affirming downward variance to 60 months, for child pornography offender; district court reasonably concluded that 235-292 Guideline range lacked empirical justification); U.S. v. Dorvee, 616 F.3d 174 (2d Cir. 2010) (reversing 240-month sentence for child pornography offender, because Guidelines lack empirical support).

The Court also noted that Turner “poses a more serious threat to society than many child pornography defendants given his history of actually abusing a small child and the increased recidivism of child sexual abusers.

Davis: No Authority to Issue COA

In Davis v. Terry, No. 10-14534 (Nov. 5, 2010), the Court denied a request for a certificate of appealability (COA) from a district court’s denial of a request for a COA. The Court noted the case’s procedural history: after the Court had denied an application to file a second or successive habeas petition, after the Supreme Court, exercising original habeas jurisdiction over Davis’ petition in the Supreme Court, had transferred the case to district court to conduct an evidentiary hearing on Davis’ claim of innocence, and after the district court held a hearing and denied relief, Davis sought a COA to appeal the district court’s ruling. The Court held that because, after its original denial of a COA, there was no further review provided by law, it had no authority over his application.