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Divided Court of Appeals Vacates Child Pornography Sentence for Procedural Reasonableness

Note: On July 11, 2016, the Brown court vacated, without explanation, the opinion analyzed below. On December 6, 2016, the still-divided panel issued a new opinion affirming Brown’s sentence as procedurally and substantively reasonable. Judge Droney authored the majority opinion, Judge Sack concurred, and Judge Pooler dissented.

In United States v. Brown, No. 13-1706, a divided panel of the Second Circuit (Pooler, Sack, Droney (dissenting)) vacated and remanded Nathan Brown’s sixty-year prison sentence on five child pornography counts out of a concern that the district court “may have based its sentence on a clearly erroneous understanding of the facts.”  Brown pleaded guilty to three counts of production of child pornography, in violation of 18 U.S.C. § 2251(a); and two counts of possession of child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B).  Brown’s crimes were horrific and involved the creation of 145 sexually explicit images and three videos of three young girls between the ages of eight and thirteen, as well as the corresponding publication of many of those images on the Internet.  In addition, on multiple occasions, Brown hid pinhole cameras in public and private locations where they were likely to capture images of nude children.  Law enforcement also recovered over 25,000 still images and 365 videos depicting child pornography on Brown’s computer, including images involving torture, bondage, bestiality, sexual intercourse, and foreign objects.

Under the U.S. Sentencing Guidelines, Brown’s recommended sentencing range was life imprisonment.  However, each of the five counts to which he pleaded guilty was subject to a statutory maximum (thirty years on each of the production counts and ten years on each of the possession counts), for a maximum available sentence of 110 years.  At sentencing, two of the three victims submitted victim impact statements, describing the lasting harm they suffered as a result of Brown’s crimes.  The third victim did not submit a statement; she was asleep when she was molested and photographed by Brown.  (Images of this third victim feature, among other acts, Brown ejaculating on the victim’s hands and feet.)  Placing great weight on the trauma that Brown’s acts inflicted on each of the three victims, the U.S. District Court for the Northern District of New York noted that Brown had “destroyed the lives of three specific children” and that “there isn’t none of the three [girls] that [Brown] didn’t abuse.”  Accordingly, the court imposed a sixty-year sentence, which included consecutive twenty-year terms on each of the three production counts, as well as ten-year terms on each possession count (to run concurrently with the twenty-year terms).

The Second Circuit rejected Brown’s challenge to his sentence on the grounds that the district court improperly grouped counts in calculating the Guidelines range and further erred in applying a sentencing enhancement for violent and sadistic conduct.[1]  However, the Court identified another procedural error that prompted a remand.  At sentencing, the district court repeatedly stated that each of Brown’s three victims had suffered greatly as a result of Brown’s abuse.  The Second Circuit thought it significant, however, that Brown’s third victim had been asleep when Brown created explicit images of her and, according to the victim’s mother, “was unaware of the abuse.”  Nevertheless, the district court issued the same sentence (twenty years) on the production count involving this victim as it did on the production counts involving Brown’s other two victims, each of whom was emotionally traumatized by Brown’s abuse. 

The Court therefore concluded that the record was ambiguous as to whether the district court issued Brown’s sentence based on a clearly erroneous understanding of the facts; this ambiguity necessitated a remand for resentencing.  While the Court insisted that it “express[ed] no definite view on the substantive reasonableness” of Brown’s sixty-year sentence, it proceeded to analyze in some detail whether an “effective life sentence”—one that typically is reserved for the most heinous crimes, including murder—was warranted in Brown’s case.  Noting that “the harshest sentences should be reserved for the most culpable behavior,” the Court distinguished Brown from murderers and from more violent sex offenders who rape and torture children.

Judge Droney issued a lengthy dissent, accusing the majority of fabricating a procedural error in order to “cloak[]” its true motivation for remanding the case: its “disagree[ment] with the length of the imprisonment imposed upon the defendant by the district court.”  In Judge Droney’s view, the district court’s emphasis on the harm that befell each of Brown’s victims—including the third—was not misplaced.  Although this third victim may have been unaware at the time that Brown was molesting her, “this does not mean that the [district] court committed procedural error by concluding that Brown ‘abuse[d]’ her or that a significant sentence was not warranted on [that] Count.”  The dissent considered Brown’s lengthy sentence appropriate: first, the sentence was well below Guidelines range (110 years), and second, the sentence appropriately reflected the severity of Brown’s crimes and distinguished between production of child pornography and mere possession.  In the end, Judge Droney concluded that, “[g]iven the seriousness of Brown’s offenses and the need to protect the public from further crimes of this defendant and others, the below-Guidelines sentence imposed in this case was well within the range of permissible decisions.”

This is a rare reversal for procedural reasonableness where the district court seemed to touch all the required bases—the Court’s searching review of the facts appears to have been less deferential than in the ordinary case.  As a result, the dissent was left to wonder whether the majority was seeking a back door through which to impose its view that the length of Brown’s sentence was substantively unreasonable.  As Judge Droney noted, Brown did not argue before the district court or on appeal that the district court had misunderstood the operative facts.  In order to reach the issue, the majority was forced to invoke the principle that a reviewing court retains discretion to raise arguments sua sponte where “manifest injustice” would otherwise result.  See United States v. Babwah, 972 F.2d 30, 35 (2d Cir. 1992).  The standard for reversal based on substantive reasonableness is even more demanding, and reversal is permitted only where a sentence is “so shockingly high, shockingly low, or otherwise unsupportable as a matter of law that allowing [it] to stand would damage the administration of justice.”  United States v. Aldeen, 792 F.3d 247, 255 (2d Cir. 2015).  Here, it is difficult to disagree with the dissent’s assessment of the seriousness of Brown’s crimes.  The majority’s conclusion that Brown’s third victim suffered “no negative impact” as a result of Brown’s abuse seems to overlook the risk that, as the dissent pointed out, “[s]imply because Jane Doe 3 did not know of Brown’s actions [at the time] does not mean she will not learn of them in the future” and experience severe psychological trauma as a result.

If the majority acted out of a concern that a life sentence was disproportionate to the crimes committed and that the harshest sentences should be reserved for the most reprehensible crimes, that position reflects the increasingly held belief that sentences imposed under the Guidelines are often longer than necessary to achieve the purposes of sentencing.  The majority also correctly noted that the likelihood of recidivism decreases with age and that only about 1% of all crimes are committed by individuals over age sixty, thus making a life sentence often inappropriate from the perspective of specific deterrence.  If the majority believed that Brown’s sixty-year sentence was simply too long, its ruling may well lead to a shorter sentence.  However, an observer might also ask if the dialogue regarding the appropriate length of prison sentences in the federal system and whether defendants are being incarcerated for far longer than they pose any real threat to society might benefit more from a ruling that squarely tackles substantive reasonableness than one that largely sidesteps the issue based on a procedural technicality.


[1] The Second Circuit in fact agreed with Brown that the district court improperly applied a four-level enhancement for sadistic conduct because the enhancement related to a possession count.  Pursuant to U.S.S.G. § 3D1.3(a), a defendant’s offense level is determined based solely on the most serious offense within a group, and each of Brown’s production offenses was more serious than his possession counts.  However, as calculated by the district court, Brown’s total offense level was eight levels higher than the maximum offense level recognized by the Guidelines; therefore, the four-level enhancement constituted harmless error because even without the enhancement, Brown’s total offense level still would have exceeded the maximum Guidelines level and still would have resulted in a Guidelines range of life imprisonment.

-By Jessica Rice and Harry Sandick