Cyber Crime Lawyer Blog

I’ve written on this blog several times about the growing movement to reconsider the harsh sentences handed down in federal child pornography cases. Sentences are set by the U.S. Sentencing Commission, and judges are given limited flexibility to change them, especially if they wish to depart downward and give the defendant a lower sentence than the guidelines warrant. Critics, including south Florida child pornography defense attorneys like me, say the Sentencing Commission’s decisions are overly influenced by politics, which is not well equipped for considering defendants’ rights because politicians know voters may punish them as “soft” on child molesters. That’s why I was pleased to see a passionate, though short, dissent in United States v. Overmyer, a Sixth U.S. Circuit Court of Appeals decision in which the majority upheld a relatively low sentence for transporting child pornography.

Leonard Overmyer originally got into trouble with the law when police traced child pornography downloads to his workplace, a Michigan auto parts manufacturer. No charges were filed, but he was fired. Less than a year later, an Internet service provider tipped off police that downloads were also coming from Overmyer’s home. A search turned up nothing on two computers, but when Overmyer asked to take his car to the mechanic, they grew suspicious and found a third laptop in the car. This one was loaded with about 90 images of child pornography. Overmyer eventually pleaded guilty to transporting child pornography, which has a statutory range of 60 to 240 months in prison. His guidelines range was 87 to 108 months. He moved for a downward variance, citing his remorse, the therapy he sought out alone and the effect of the case on his family. The federal district court declined and gave him the low end of the range, 87 months (seven years and three months).

On appeal, Overmyer argued that the sentence was both procedurally and substantively unreasonable. The Sixth Circuit first dismissed the procedural argument, finding no error in the review the court gave his requests. Indeed, it said, the trial court had taken the effects on Overmyer’s family and livelihood into account when sentencing at the low end of the guidelines. The court spent more time on the substantive reasonableness argument, whch was that the sentence was too long. Sentences within the sentencing guidelines are presumed to be reasonable, the Sixth noted. While Overmyer’s arguments against the sentence might support a lower sentence, the majority said it didn’t have license to consider anything that doesn’t compel a change. Furthermore, the majority said, recent Supreme Court decisions do not permit appeals courts to reverse just because they disagree; the disagreement must be based on unreasonableness. And it’s difficult to establish unreasonableness when the trial court and sentencing commission agree, the majority said.

The dissent by Judge Merritt focused on what the judge saw as the larger picture: “the continued sad dependence of federal judges on a harsh sentencing grid created by a distant bureaucracy.” The dissent heavily cited the Third Circuit’s decision in United States v. Grober, in which the Third upheld a downward departure for a child pornography defendant. The Third found that the sentencing guidelines are flawed and arbitrary, the dissent said. Sentence enhancements apply in nearly every case because they are “essentially inherent in the crime,” that court said, and the prosecutors’ choice of charge largely determines sentencing. As a result, that court found that anything more than the minimum would be unreasonable. The dissent found this compelling and instructive on the flaws of the “child pornography grid.” By rubber-stamping the result when the judge and Sentencing Commission agree, the dissent said, the majority has ignored several other issues and allowed the grid to become “a biblical command.”

As a Miami-Dade cyber crime defense lawyer, I’m pleased to see this kind of reasoning entered in the federal record — even if it did not determine the outcome of the case. As the dissent notes, there are other courts that have expressed dissatisfaction with the harshness and rigidity of the sentencing guidelines. By locking judges into specific sentences or sentence ranges, the guidelines take away in some sense their ability to be judges — to rule on the situation according not only to the letter of the law, but to the full situation. This has consequences for real people, who spend years and years in prison for what the dissent called addictive, nonviolent crimes. In my work an Orlando child pornography defense attorney, I try to eliminate or minimize any federal child pornography charges, because sentencing is a difficult place to seek mercy.