If you’re facing sentencing for a federal child pornography case, the stakes are pretty serious. A conviction for receipt of child pornography (18 USC 2252A) carries a mandatory minimum sentence of 5 years in federal prison. A conviction for producing child pornography (18 USC 2251) carries a mandatory minimum sentence of 15 years in federal prison.
Mandatory minimum sentences are set by Congress. With very few exceptions, mandatory minimum sentences are the floor of what a judge can impose, regardless of whether a judge wants to impose a lower sentence. This means that a first time offender convicted in federal court of 18 USC 2251 cannot receive a sentence less then 180 months in prison.
EXCEPTIONS TO MANDATORY MINIMUM SENTENCES
SUBSTANTIAL ASSISTANCE
The United States Attorney can release the mandatory minimum sentence in child pornography cases if the accused provides substantial assistance to the government. Fed. R. Crim. P. 35 allows the court to sentence below the minimum sentence established by statute if “within one year of sentencing” the government moves for the court to reduce the sentence because “the defendant, after sentencing, provided substantial assistance in investigating or prosecuting another person.” Essentially, this means that someone who, after sentencing, tells on another can receive a reduction in his sentence. As a general rule, in order to get this reduction, you need to have valuable and actionable information. Generally knowing that someone else committed a crime isn’t enough.
SAFETY VALVE
This doesn’t apply in child pornography cases. Congress has determined that in certain drug cases, the court can avoid the mandatory minimum. Pursuant to 18 USC 3553(f), the court can sentence below a mandatory minimum for a first-time, non-violent drug offenders whose cases did not involve guns.
WHAT FACTORS DOES A JUDGE CONSIDER WHEN DETERMINING A SENTENCE?
A federal judge is required to properly calculate and consult the sentencing guidelines. For a sentence to be considered reasonable, the court must correctly calculate the sentencing guidelines. United States v. Brown, 579 F.3d 672(6th Cir. 2009). When a court fails to properly calculate the sentencing guidelines and that results in a different sentencing range, the accused citizen is entitled to a new sentencing hearing. Essentially, the rule is that the guidelines are a starting point and if the court starts from the wrong place, we can’t be sure that it ended up in the right place.
AFTER CONSULTING THE GUIDELINES, A FEDERAL COURT MUST CONSIDER THE SENTENCING FACTORS.
The most significant part of a federal sentencing decision is the Court’s assessment of the factors in 18 USC 3553(a). These factors include:
- The nature and circumstances of the offense and the history and characteristics of the offender;
- The need for the sentence imposed to reflect the seriousness of the offense;
- The need for the sentence imposed to promote respect for the law;
- The need for the sentence imposed to provide just punishment for the offense;
- To afford adequate deterrence to criminal conduct;
- To protect the public from future crimes by the accused citizen; and
- To provide the accused citizen with educational or vocational training, medical care, or other treatment in an effective manner.
Essentially, this boils down to explaining to the sentencing judge who our client is, how he or she ended up in this situation, and how we can address the problems going forward. In child pornography cases,we often engage psychologists and other professionals to provide opinions regarding future risk. We gather support evidence to explain to the judge who the client is outside of this case (e.g., the characteristics of the offender). We frequently gather support letters from folks who know our clients. We have produced short documentary films about our clients in order to help the judge truly understand our client, his background and how he positively impacts the people around him.
The bottom line is that in most cases, a person accused of a child pornography offense is more than the sum of his worst decision. Judges need to fully understand the people they are sentencing in order to impose a fair and appropriate sentence. If one of our cases is approaching sentencing, we work hard to help our clients tell their stories to the judges who hold the keys to freedom and the future.
If you’re facing a federal child pornography case anywhere in the United States, call Josh Blanchard to discuss how our team can help.
