Sentencing Class @ OSU Moritz College of Law

Should Mike Davis, the 10TV weatherman, face only state charges for sending and receiving "significant" amount of child pornography?

I had no idea during our discussion on Wednesday of federal sentencing ranges for child pornography offenses that there would be a high-profile arrest in our own neighborhood on state charges involving this behavior just the next day.  This local article, headlined "Ohio TV station's chief meteorologist charged with child pornography," provides these details (with some highlighted in bold):

A meteorologist for an Ohio television station has been arrested and charged with pandering sexually oriented matter involving a minor.  Mike Davis, chief meteorologist for WBNS-TV in Columbus, Ohio, was booked into the Franklin County Jail on Thursday for the second-degree felony.

The alleged offense occurred on Aug. 5, 2019, according to Franklin County Municipal Court Records.  The records allege that Davis knowingly advertised for sale or dissemination an image of a young girl participating or engaging in sexual activity, according to WCMH-TV.

Franklin County Sheriff Dallas Baldwin said in a news conference that two weeks ago, the Internet Crimes Against Children (ICAC) task force received a tip that Davis had allegedly sent and received a “significant” amount of child pornography, the station reported. “This establishes a pattern of behavior.  One week ago that information was confirmed and more evidence was gathered,” Baldwin said.

ICAC executed search warrants Thursday morning at multiple locations that included Davis’ home and the WBNS-TV studios, WCMH-TV reported. ICAC detectives arrested Davis at his home Thursday morning.

“These are kids that are clearly being exploited for sexual appetite,” Chief Deputy Rick Minerd said.

“There’s no question that it was him versus someone else living in that home?” a WCMH-TV reported asked Minerd. “Yes,” Minerd said.

The Ohio Revised Code provision, § 2907.322 Pandering sexually oriented matter involving a minor or impaired person, which serves as the basis for the charge against Davis, sets forth a second-degree felony which means the the sentencing range under Ohio law is "an indefinite prison term with a stated minimum term selected by the court of two, three, four, five, six, seven, or eight years and a maximum term [that is "plus fifty per cent of that term"].  In other words, if convicted under Ohio law for only this single charge, Davis could get as low as 2-3 years in state prison or as high as 8-12 years in state prison.  If he were subject to multiple charges, which certainly seems possible given the report of a “significant” amount of child pornography, the sentencing possibilities could expand.

And, as we discussed in class, there are complicated federal criminal statutes, particularly 18 U.S.C. § 2252 and 18 U.S.C. § 2252A, under which Davis might be charged in federal court for this conduct. (And the Supreme Court confirmed this past Term that a defendant can be charge in two distinct jurisdictions based on the same criminal conduct.)  This chapter of a lengthy US Sentencing Commission report on child porn offense provides (just some of) the statutory ranges for this conduct under federal law:

Upon conviction of any [child porn] production offenses, an offender faces a mandatory minimum term of 15 years of imprisonment and a maximum of 30 years...  Advertising child pornography carries a mandatory minimum penalty of 15 years of imprisonment....

The offenses of receipt (or solicitation), transportation (including mailing or shipping), distribution, and possession with the intent to distribute or sell child pornography each carry a mandatory minimum term of five years of imprisonment and a maximum term of 20 years...

The current statutory range of imprisonment for possession is zero to ten years of imprisonment if an offender possessed child pornography depicting a minor 12 years of age or older who was not then prepubescent and zero to 20 years of imprisonment if an offender possessed child pornography depicting a prepubescent minor or a minor under 12 years of age.

I am not concerned that you know all of these particulars, but I am eager for you to see (a) how complicated this can get, and (b) how consequential the decision to charge in state versus federal court can sometimes prove to be.  Last but not least, I am already eager to hear any early musings about an appropriate sentence for Mike Davis.

March madness predictions, sentencing style

I believe we will know the outcome of two interesting and very different sentencing cases I have been following before the end of today (March 9).  But before we get sentencing outcomes, I wanted, in the spirit of March Madness, to encourage sentencing students (if not already checked out for Spring Break) to make sentencing predictions with the prospect of a reward.  Specifically, anyone who comments to this post with a sentencing prediction in these two pending cases who comes within two years of the actual outcome will be treated by me at a coming happy hour:

Federal fraud sentencing for "Pharma Bro" Martin Shkreli, being decided by US District Judge

State involuntary manslaughter sentencing for Shana Elliott, being decided by a Texas jury

 

Diving deeper into "who" and "how" with a little help from a new Massachusetts case

Next week we will continue to discuss the Williams case in order to continue to unpack the relationship between theories of punishment and the "who" and "how" of sentencing.  And, before we wrap up our Williams discussion, I will review what doctrines from Williams remain good law and what do not.  That discussion may lead us to discuss the more modern McMillan and Blakely cases, so be sure to have read those cases for next week.

The McMillan case also brings up the "why" and "who" and "how" of mandatory minimum sentencing.  So be sure to read (and re-read) the selection from the US Sentencing Commission about the debate over mandatory minimums (MMs) and think about who ends up with the most sentencing power in a jurisdiction that makes regular us of MMs.

Last but not least for next week, I hope we can take about the role of crime victims at sentencing and you have a reading selection in the text that covers this part of the who story.  But, conveniently, the Massachusetts Supreme Judicial Court handed down a notable short ruling on these issues just today: Massachusetts v. McGonagle, SJC-12292 (Mass. Jan. 18, 2018) (available here).  Because I so enjoy bringing "hot new cases" into our discussions, I encourage everyone to read this new McGonagle case instead of (or in addition to) the victim-input section of the text.

SCOTUS cert petition in Young v. United States asserting 15-year ACCA prison term violates the Eighth Amendment

As mention in class, I am working on an amicus brief in support of a petition for certiorari in Young v. United States. I just received a copy of the petition, which was filed today, and the petition's appendix includes a copy of the Sixth Circuit opinion which rejected the defendant's assertion that a 15-year mandatory minimum sentence for being a felon in possession of shotgun shells violated the Eighth Amendment's prohibition on cruel and unusual punishments. The full petition and appendix can be downloaded below, and here is how the petition styles the Question Presented:  

Whether the Eighth Amendment to the U.S. Constitution’s “evolving standards of decency” standard bars the application of a sentencing enhancement, the Armed Career Criminal Act, 18 U.S.C. section 924(e), to a conviction for being a felon in possession of ammunition in violation of 18 U.S.C. section 922(g)(1), when the defendant’s possession of the seven shotgun shells at issue was passive, innocent, and initially unwitting, when the defendant’s most recent prior felony conviction was twenty years old, and when the resulting mandatory minimum sentence is 18 times greater than the minimum sentence the defendant would have otherwise received and more than 11 times greater than the maximum sentence the defendant would have otherwise received.

Download Young v US -- Petition for Writ of Certiorari with Appendix

With the killer bride and Rob Anon now behind bars, we will turn to drug sentencing and mandatory minimums

As reported fully here and here via my main blog, after Bridezilla Jordan Graham failed in her effort to withdraw her plea based on prosecutors' sentencing arguments, she was sentenced to 365 months in federal prison for having pushed her new husband off a cliff.  (Notably, the district judge at sentencing cited Graham's apparently lack of remorse when giving her this long a prison sentence.   Does this suggest she got a (much?) longer prison sentence not because of her offense but because of her failure to adequately say she was sorry after the fact?  Would it trouble you if the sentencing judge had said expressly that he was planning to give Graham 240 months if she had seem genuinely sorry when she spoke at sentencing but then increase the sentence another 10 years once her remorseless attitude was clear?)

We could easily continue dissecting the Graham case for another week, especially with respect to Chapter 5 topics regarding how her "offender characteristics" did/should impact her sentence.  Here, for example, are just some of the specific hard questions raised by this classic sentencing issue in the Graham case:  should her decision to plead guilty (at the last minute) reduce or increase her sentence? Should her lack of remorse matter a lot (as it seemed to the sentencing judge)?  How about her status as a newlywed?  Would it have properly mattered at sentencing if she had some temporary or permanent mental difficulties, e.g., suppose she was extra upset on the fateful night because she had just learned she was pregnant or suppose she had long been diagnosed with bipolar disorder and had been off her meds since just before her wedding?   

But rather than continue to obsess over the killer bride  (or our old pal Rob Anon), I think it is time for us to move to the hottest (and perhaps most important and consequential) topic in non-capital sentencing: sentencing for drug offenses and legislative embrace of harsh (sometimes mandatory) minimum prison terms in an effort to deter drug crimes and their associated harms.  Helpfully, a couple of recent stories from my main blog provide timely information and background on these matters, and I highly recommend that all students read (or at least skim) this trio of new materials:

• Chief Judge Patti Saris, Chair of United States Sentencing Commission and federal district judge, gave this informative speech at the Georgetown University Law Center titled “A Generational Shift For Drug Sentences.”  It provides great background on the past and present of federal drug sentencing.

• US District Judge James Browning  provides a defense of the federal sentencing status quo in a lengthy opinion in US v. Reyes, CR 12-1695 (D.N.M. March 2014) (available here).   For any and everyone concerned about federal (or even state) sentencing for drug offenses, this opinion is a must-read.  Reyes also provides a remarkable case-specific window into the modern drug trade and the persons who get caught up within it.

• An on-going legislative sentencing reform debate developing around heroin in Louisiana, which is well covered in this notable news article headlined, "In heroin debate, a detour from sentencing reform." 

Sentencing submissions in US v. Graham: YOU BE THE SENTENCING JUDGE (and/or predict what the real judges will do)

As promised, here are links to the sentencing submission in US v. Graham (D. Montana):

• Defense sentencing memorandum for Jordan Linn Graham

• Prosecution sentencing memorandum for Jordan Linn Graham

As I mentioned in class, I am VERY interest in having students review these submissions and then comment/opine about (1) what sentence they would give if the sentencing judges in this case, and/or (2) what sentence they predict the actual federal sentencing judge will give on Thursday at the actual sentencing.

For anyone who makes a judgment/prediction that is spot on, I will reward with a special surprise prize.

UPDATE: Outcome is detailed over at SL&P: Remorseless killer bride gets sentenced to 30+ years in federal prison

If you want to spend a cold day in a warm appellate courtroom...

I will be driving down to Cincy this Thursday morning in order to participate in oral arguments before the Sixth Circuit in US v. Young.  Details about the case is available here at my main blog, and the arguments are slated third for session (as set forth on this calendar) scheduled to begin at 9am.  The panel hearing the case is composed of Judges Griffin, White, and Stranch in Room 403 of 540 Potter Stewart US Courthouse Building.

I will be driving down to Cincy in my Prius, which can hold up to 3 passengers. I already have one student scheduled for a ride, whom I plan to pick up in the Moritz parking lot at 7:20am on Thursday morning. Anyone ease eager to come along should let me know ASAP so I look for you at that time.

Student guest-post discusses "Wide Receiver Busts (Non-Draft Edition)"

A couple more students got me some more "top-flight" guest-post material in time to get a little credit for the effort. I will post the entries periodically, and start with this sports-related sentencing post for all those who have (like me) already spent a little too much time watching football since classes ended:

It’s no great surprise to learn that an athlete is in legal trouble, but the recent investigations of (now former) Bears receiver Sam Hurd and Bengals receiver Jerome Simpson break the mold of DUI’s and t-shirt thefts.  Simpson and Hurd were both investigated for drug distribution crimes that carry major federal sentencing consequences, yet Simpson is still reeling in passes for Cincinnati’s playoff drive while Hurd was quickly waived by Chicago.

Hurd wasn’t just waived because he isn’t as good a player -– 8 catches for 109 yards to Simpson’s 40 catches for 629 yards and 3 TD’s –- his situation is far more dire.   Both cases are federal and implicate the sentencing guidelines. Simpson received a shipment of 2.5 pounds of Northern California marijuana while Hurd told an undercover federal agent that he wanted to buy between 5 and 10 kilograms of cocaine and 1,000 pounds of marijuana per week.

Hurd has been charged with conspiracy to distribute 500 or more grams of cocaine, and his case has been transferred to Texas. Under the federal guidelines § 2D1.1(c), that amount carries a base offense level of 26.   This is raised to 38, however, for a conspiracy of a continuing criminal enterprise under § 2D1.5 and a mandatory minimum of 20 years under 21 U.S.C. § 848.  Hurd could face life imprisonment under the same statute if his gross receipts over 12 months were over $10 million and he was a principal administrator.   Given that Hurd had offered to pay around $2.8 million a month for drugs, it seems likely he would meet these thresholds. It is an enormous jump under the statute from the base level 38 which would result in a sentence of 235-293 months (20-25 years) without any criminal history adjustments.

By contrast Simpson’s marijuana package would carry a base offense level of 10, and 6-12 months with no criminal history, though he may be subject to mandatory minimums if he is found to be part of an ongoing conspiracy and other packages were found in his home could lead to a higher base level. California federal prosecutors have taken over his case, and he is yet to be charged.   These facts indicate that Simpson may be cooperating to reduce his penalties and to help investigators go after drug suppliers in Northern California’s “Emerald Triangle.”

Given the penalties faced by Hurd, he is incentivized to follow Simpson’s lead (if he is in fact cooperating).   Though his lawyer has indicated that a guilty plea is not immediately forthcoming, the mandatory minimums provide a huge reason for him to identify bigger fish for the federal prosecutors to fry.

Background links:

• On Hurd Charges and transfer to Texas 
• Simpson investigation linked to California 

Hey sports fans, lots of federal sentencing stories to follow

As a big sports fan, I tend to get a kick out of being able to follow federal sentencing stories via the sports page.  And now, as detailed in these two recent posts from my main blog, there are two timely stories worth watching closely:

• Any predictions (or suggestions) for ... sentencing of Barry Bonds?
• NFL player arrested by feds for big-time drug dealing

The second story, concerning the Chicago Bears receiver Sam Hurd and his alleged involvement in a big cocaine distribution scheme, provides a particularly good opportunity for students to think about plea bargaining practices and high-profile defendants.  Should Hurd's defense attorney and/or the federal prosecutors handing the case be talking about trying to put together a quick plea deal before all the details of Hurd's alleged  offense conduct become the topic of ESPN debate?  Or should both sides be already thinking about the "fight to the death" approach that Jerry Sandusky's lawyers have adopted?

Anyone eager to talk more about these issues at a sports bar over drinks can/should come get me from my office late on Friday night.  In addition to working late this Friday to follow the Bonds' sentencing from the West Coast, I am a free agent through the evening because my family has a "girls night out" without me at a holiday cookie party.

US v. Fitch and the potential impact of uncharged offense conduct

As noted in this agenda post, our class this Tuesday will focus on the consideration of acquitted and/or uncharged conduct at sentencing, with particular emphasis on the Supreme Court's 1997 ruling in US v. Watts (excerpted in casebook, full text here) and the Ninth Circuit's ruling just last month in US v. Fitch (full opinion here).  To whet everyones' appetite, and perhaps begin our discussion via comments to this post, consider the start of the majority opinion in Fitch:

David Kent Fitch was convicted by a jury of nine counts of bank fraud, two counts of fraudulent use of an access device, two counts of attempted fraudulent use of an access device, two counts of laundering monetary instruments, and one count of money laundering.  The applicable Sentencing Guidelines range was 41-51 months.  At sentencing, however, the district judge found by clear and convincing evidence that Fitch had murdered his wife, and that her death was the means he used to commit his crimes. Relying on that finding, he imposed a sentence of 262 months.

Fitch appeals his sentence, arguing that the district court committed procedural error and that, in any event, its sentence was substantively unreasonable.  Because Fitch has never been charged with his wife’s murder, his sentence is a poignant example of a drastic upward departure from the Guidelines range — albeit below the statutory maximum — based on uncharged criminal conduct.  We have not had occasion to address a scenario quite like this, but are constrained to affirm.

Reconnecting on Feb 24 with the help of lots of notable current events

I have heard great reports about the class this past week from our two kind guest lecturers.  When we (finally!) get the chance to reconnect this coming Wednesday, I would be happy and eager to provide any kind of direct follow-up to what you covered this past week (and students are encouraged to use the this post for any follow-up comments or requests based on the guest presentation).

In addition to any needed follow-up, I plan for this week's class to involve mostly reconnection after we've been away from each other quite a while thanks to snow days and other complications.  Specifically, here are my main agenda items for this week's class on Feb 24:

1.  Confirm due dates and expectations for mid-term assignment and final white-paper

2.  Wrap up focused discussion on the death penalty with emphasis on appreciating the importance (and interplay) of the distinct concepts of discretion, disparity, discrimination and sentencing severity. 

For this part of the class discussion, consider how you (or others) would answer this question: Would you prefer a modern justice system in which the 500 worst murderers each year all got executed or one in which only 50 of these 500 worst murderers were executed, but that some (hard to identify) discriminatory factors will probably play a role in selecting which exact 10% of the worst 500 murderers get executed?

3.  Discuss which (of so many) interesting current-events developments we might want make a special focal point for focused discussion in the weeks before Spring Break. 

For this part of the class discussion, consider these posts of note from around the blogosphere:

• Mandatory minimums and automatic weapons: United States v. O'Brien and Burgess, [SCOTUS] Argument preview
• Canada's Supreme Court authorizes discount for police misconduct while upholding mandatory sentencing term
• DOJ suggests "extraordinary" leniency justified for Bernie Madoff's lieutenant
• "Race and Gender as Explicit Sentencing Factors"
• "Judicial Discrection: A Look Back and a Look Forward Five Years After Booker"

As always, students are welcomed and encouraged to get a running start on a discussion of these (and other) topics via the comments to this post.

You be the judge: what sentence would you give to Gilbert Arenas following his plea?

As detailed  this Washington Post article, which is headlined "Arenas awaits sentence on gun charge, fate in NBA," the gun fun had by NBA star Gilbert Arenas last month has now made him a great subject for discussion and debate in a sentencing seminar.  I have asked this same sentencing question in this post at my main blog, and here are the key legal basics to keep in mind as reported by the Post:

Arenas won't know whether he must serve jail time until his March 26 sentencing and remains free until then.  The government indicated it will not seek more than six months, although the judge can give Arenas anywhere from probation to the charge's maximum term of five years.  Guidelines call for six to 12 months.

I am especially interesting in having students think about these Chapter 2 "who sentences" topics as we contemplate Arenas's possible sentencing fate:

1.  How should the fact that Arenas is suffering a multi-million dollar "punishment" from the NBA and the Washington Wizards impact Arenas's sentencing outcome?

2.  How should the fact that DC's advisory sentencing guidelines impact Arenas's sentencing outcome?

3.  How should the fact that prosecutors have agreed not to seek a prisoner term of more than six months impact Arenas's sentencing outcome?

4.  Are there any victims of Arenas's offense of one count of carrying a pistol without a license in the District of Columbia whose interests should be considered?

5.  How should the fact that Arenas agreed to plead guilty impact Arenas's sentencing outcome?

6.  If Arenas were to start doing prominent and significant anti-gun-violence community service, how should that fact impact Arenas's sentencing outcome?

7.  Should any sentencing outcome be subject to appeal (by either prosecutors or Arenas)?

Two intersting opinions on sex and drugs from two different appeals courts

This week we will start to apply some of our lessons about the challenges of sentencing theory (Chapter 1 of our text) to the story of who sentences (Chapter 2 of our text).  To get a running start on this topic, and also to further everyone's interest in sentencing stories surrounding sex offenders and drug offenses, I offer here links to two really fascinating opinions handed down this week from two different appellate courts.  Though reading these new cases is not technically "required," I will happily make either (or both) of these cases the focal point of discussion in coming classes if students express an interest in them.

First, from the First Circuit, we get US v. Perazza-Mercado, No. 07-1511 (1st Cir. Jan. 21, 2009) (available here), which covers (frequently litigated) issues surrounding broad conditions of supervised release for a federal sex offender. The start of the majority opinion sets out the basic issues:

This case requires us to address the validity of two conditions of supervised release imposed on a defendant convicted of unlawful sexual contact with a minor.  The first condition prohibited the defendant from having any access to the internet at home during the fifteen-year supervised release period. The second condition prohibited the possession of pornography generally.

Second, from the Wisconsin Court of Appeals, we get Harris v. Wisconsin, 2009 Wisc. App. LEXIS 39 (Wisc. Ct. App. Jan. 21, 2009) (available here), in which a Milwaukee man convicted of selling cocaine got his sentence reversed because the judge who sentenced him referred to the man's "baby mama" and asked him where "you guys" find women to support them while they stay home.