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Split court affirms long child porn sentence but dissent wants sentencing changes

ANNIE YAMSON
Special to the Legal News

Published: January 28, 2015

A split panel of three judges in the federal 6th U.S. Circuit Court of Appeals recently considered the case of Michael Walters, a man who admitted to possessing, receiving and distributing child pornography.

Walters was apprehended after federal agents acting under the auspices of the Ohio Internet Crimes Against Children Task Force located a computer downloading several videos depicting real children, ages 5 to 14, engaged in sexually explicit conduct.

The material was accessed through peer-to-peer software which allows users to simultaneously download and share files with other users.

Walters consented to a search of his computer and investigators found that, over the course of a year, he had viewed 500 pornographic images.

Ultimately, Walters entered guilty pleas to receipt, distribution and possession of child pornography without the benefit of a plea agreement.

He was sentenced in January 2014 to 12 years in prison by the United States District Court for the Northern District of Ohio at Akron.

The trial court imposed three enhancements to Walters’ sentence, one of which was for distribution, another for engaging in the receipt and distribution of materials depicting sadism, masochism and other violence and a third for the use of a computer.

On appeal to the 6th Circuit, Walters challenged those enhancements, arguing that they constituted impermissible double counting in violation of his rights to due process and to be free from double jeopardy.

After considering the facts of the case, the reviewing court was divided in its opinion.

The majority, whose opinion was authored by Judge Bernice Donald, held that the district court did not abuse its discretion when it applied the sentencing enhancements to Walters.

“It is well established in this circuit that double counting — even impermissible double counting — does not rise to the level of a constitutional violation,” wrote Donald.

Sentencing enhancements, Donald held, do not fall under the category of double jeopardy because they constitute “increased penalties for the latest crime,” rather than a new or additional penalty for earlier crimes.

Additionally, she noted that Walters failed to articulate a connection between double counting and a violation of due process.

“Walters asserts only that the sentence is ‘unfair’ and requests a downward adjustment,” wrote Donald, noting that he failed to prove that the enhancements were impermissible.

Judge Gilbert Merritt dissented, issuing a scathing indictment of sentencing practices in child pornography cases.

“I regard the 12-plus years of incarceration the defendant Walters received as a vast over-criminalization of the wrong involved, a sentence vastly disproportionate to the crime,” wrote Merritt. “Walters downloaded a group of photos from the large inventory of child porn photos on the Internet.”

Merritt stated that Walters “is not a pedophile,” that he never physically abused anyone and that he is a young man with a wife and children whom he has not abused.

He also noted that Walters did not pass the photos on to anyone, did not have anything to do with their production and he never paid anything for them.

“For someone to presumably enjoy looking at (those photos) offends us, although we do not know his state of mind for it is a strict liability crime,” wrote Merritt. “To assert, however, that the defendant ‘caused’ the production of the photos fabricates ‘causation,’ it is a rationalization arising from our disgust and disapproval.”

The dissenting judge pointed out he is not the first to disagree with the sentencing guidelines in child pornography cases.

In fact, the Sentencing Commission itself in 2012 conducted an extensive study and issued a report to Congress entitled “Federal Child Pornography Offenses.”

The report was conducted based in large part on the refusal of many judges to follow the sentencing guidelines.

“Most stakeholders in the federal criminal justice system consider the non-production child pornography sentencing scheme to be seriously outmoded,” the report states. “Those stakeholders, including sentencing courts, increasingly feel that they are left without a meaningful baseline from which they can apply sentencing principles.”

The Commission’s study came to the conclusion that current child porn guidelines have “no rational basis.”

For example, Walters was subject to an enhancement for his use of a computer and the majority opinion held that the enhancement “remains relevant” despite the widespread use of electronic communication.

But the Sentencing Commission’s report indicated that the “typical offender today uses modern Internet-based technologies” almost exclusively.

More than a decade ago in 2003, Protect Act provisions ordered the Sentencing Commission to write guidelines that recommended higher sentences for child porn offenders.

At that time, the report notes that Internet-based sharing technology was just emerging.

Enhancements that relate to computer usage “fail to differentiate among offenders in terms of their culpability,” the report states.

“Indeed, most of the enhancements in their current or anecdotal versions, were promulgated when the typical offender obtained child pornography in printed form in the mail,” according to the Commission.

The Sentencing Commission asked Congress to remove the Protect Act provisions but, as Merritt noted, no action has been taken.

“It seems obvious that nothing is going to soon change the injustices such as this one that are going on every day in the federal courts — unless the courts themselves find a solution that at least ameliorates the problem for the time being,” wrote Merritt.

He suggested a partial solution in the Eighth Amendment’s protection against cruel and unusual punishment.

“If ever a sentence should be labeled ‘excessive’ and ‘out of proportion’ to the ‘offender and the offense,’ and outside ‘evolving standards of decency,’ it is the 12-plus years of imprisonment imposed in this case on a young man and his family because he downloaded a group of deviant and disgusting child porn photographs,” Merritt concluded.

“I am sorry that our panel has not acted to at least reduce the sentence to the five-year mandatory minimum and to express its disagreement with this unjust sentence.”

Judge Helene White joined Donald to form the majority but she wrote a concurring opinion to express her agreement that the sentence is, in fact, excessive.

“Unfortunately, as the dissent observes, Walter’s counsel did not bring to the district court’s attention, or argue on appeal, that the (Sentencing) Commission considers the sentence recommended here to be excessive,” White wrote.

In the context of Walters’ case, White stated that competent counsel would have pointed out that the sentence was “contrary to the Commission’s considered judgment.”

She suggested that Walters raise the issue in a petition for postconviction relief.

The case is cited United States v. Walters, Case No. 14-3097.

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