slippery slope.jpgThere is a moment in most great horror movies where the evil presence/bad guy/ghost/homicidal maniac takes out a character who has it coming. For a moment, the audience applauds the wicked antagonist. Think of Jason from Friday the 13th taking out a weaselly teen or the scene in Jurassic Park where the velociraptors eat Dennis Nedry (a/k/a Newman from Seinfeld). Eventually, though, the antagonist continues to do damage to good characters, bad characters, and everyone in between.

If the Federal criminal justice system is the horror movie, then the Federal Sentencing guidelines are the antagonist. Last week, Jason from Friday the 13th re-emerged from the lake. It just so happens that he took out William Irey, a guy who had it coming. But the Guidelines are back with a vengeance to haunt us in a way they haven’t since the Booker decision, and they’ve already started slashing away at the discretion of Federal District Court judges. If Mr. Irey applies for certiorari, then it may be time to start thinking movie antagonist on the level of the big red eye from The Lord of the Rings.

 

The Bad Guy Who Got What was Coming

Meet William Irey. Mr. Irey was a successful businessman who took multiple trips to Asia where he filmed himself exploiting children. He came back to the States and distributed the images over the internet. I am not going to say more. In fact, I have not found a blog or article on this case that recites the particulars. For that, you have to read the opinion (PDF). In summary, I don’t think I’ve read about worse facts in a child sexual crime case.

Mr. Irey plead to a single count of child sexual exploitation under 18 U.S.C. Section 2251, an offense that carries a range of punishment from fifteen to thirty years to serve. The Federal Sentencing Guidelines called for a sentence of life in prison or the maximum sentence.

The sentencing judge deviated substantially from the guidelines recommendation and sentenced Mr. Irey to serve 17.5 years, just two and a half years over the minimum and a 12.5 year downward variance from the guidelines sentence.

To make things worse, the sentencing judge said some rather unfortunate things. The worst was the court’s decision to refer to Mr. Irey as a victim.

As Scott Greenfield put it in his post on the Irey case, the judges could not live with the prospect of Mr. Irey ever walking out of prison. David Oscar Marcus, at the Southern District of Florida Blogreaches similar conclusions.

The problem is how they got there and the fact that the 11th Circuit has revived the Federal Sentencing Guidelines in a big way.

 

How the Majority Imposed the Maximum for Mr. Irey

Without resorting to straight opinion summary (because opinion summary is boring and impossible in this 256 beast of an opinion), the majority had a few obstacles to overcome to get Mr. Irey the time he deserved. The destruction of those obstacles will likely get a future defendant a sentence he does not deserve.

One obstacle was Rita v. United States – In that case, the Supreme Court held that a Federal appellate court may correct substantive sentencing mistakes resulting in sentences that are unreasonable, assuming that the appellate court is deferential to sentencing decisions.

The next was Gall v. United States, a case where a college sophomore was involved in a conspiracy to distribute ecstasy. He withdrew from it, finished college, and became a master carpenter. Two years later, he was prosecuted. His guidelines called for 30-37 months, but he was sentenced to serve a term of probation. The Court ultimately found its way to the Supreme Court, where it was upheld after the Court found that:

  • the standard of review for sentencing is abuse of discretion. 
  • Courts of review must “give serious consideration” to the extent of any departure from the guidelines and must offer “sufficient justification” for its conclusion that an unusually harsh or light sentence is appropriate
  • The justification for the deviation from the guidelines range must be “sufficiently compelling to support the degree of the variance.”

Having paid lip service to the abuse of discretion standard, the majority began critiquing the sentencing court’s reasoning in a de novo sort of way. By that, it took the mitigating factors from the trial court and argued the other side the way an advocate might. The majority attacked the mitigating testimony offered by a defense mental health expert as well as that offered by Mr. Irey’s family

Finally, the Court imposed a guidelines sentence in place of the sentence of the trial court.

 

Judge Hill’s Concurring Opinion

He deftly limits his vote on this case to its unique facts. He focuses on one simple question: “If this case does not demand the maximum sentence … what case would?” If Judge Hill’s opinion were the opinion of the Court, it would be difficult to cite it as precedent, and it would appear to be limited at least to the particular offense involving a defendant with conduct equally as gross and abusive as Mr. Irey’s. Of course, at bottom, Judge Hill is substituting one sentence for another in his position as an appellate judge.

 

Judge Tjoflat’s Opinion

Judge Tjoflat would have remanded the case with instruction to conduct a new sentencing hearing. He is disturbed by the majority’s approach

According to Judge Tjoflat the majority “orders the district court to impose [a new sentence] on remand. It does so on the basis of new evidence and arguments that the Government never presented to the district court. In short, we have assumed the role of resentencer. … Resentencing defendants on appeal does immense harm to this court’s institutional relationship with the district courts by transforming the district court’s sentence from the “main event” to a “tryout on the road.”

 

The Edmondson, Birch, Barkett, and Martin dissent

The dissent takes issue with the idea that a sentence that varies from the advisory sentencing guidelines is presumptively reasonable. The judges would not authorize a reversal of a sentencing decision if there is any evidence in the record to support it. The judges call out the majority as essentially applying a de novo standard the way the 8th Circuit did in the Gall decision.

In this case, the dissent found that there was some evidence to support 17.5 years and a lifetime of supervised release – namely, acceptance of responsibility, expression of remorse, cooperation with the government, family and friend testimony, and the testimony of the mental health expert.

While they might have imposed a different sentence, they supported the right of the sentencing judge to hear the evidence and render a different decision.

Finally, the judges say that they “dissent with respect and not without regret.”

 

Conclusion

While the result is commendable, this opinion is going to hamstring the Federal trial court bench. In such an atmosphere, with a defendant who is sufficiently vile (and “sufficiently vile” is a subjective moving target) it is unacceptable to sentence less than the guidelines.

It’s a disturbing opinion. The only more disturbing thing to imagine would be the Supreme Court granting a certiorari petition on these facts.