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Second Circuit Clarifies That Statutory Maximum Takes the Place of the Guidelines Range in Remand of Child Pornography Sentence

In United States v. Bennett, 15-0024-cr (October 6, 2016, amended October 7, 2016) (Walker, Calabresi, Hall), the Court remanded for resentencing to make clear that under U.S.S.G. § 5G1.1(a), where the statutory maximum falls below what would otherwise be the Guidelines range, the statutory maximum becomes the Guidelines sentence.   

The facts of Bennett are disturbing and unfortunate.  Darrell Bennett had overcome a “difficult upbringing”—in which he witnessed physical abuse and suffered sexual abuse—to become the valedictorian of Morehouse College and a graduate of the Harvard Law School.  Despite his successes, Bennett experienced severe depression and eventually became involved in the possession and distribution of child pornography via a peer-to-peer file-sharing network.  Ultimately, Bennett pled guilty to one count of possession of child pornography under 18 U.S.C. § 2252A(a)(5)(B). 

At sentencing, the district court made two relevant determinations.  First, it applied a five-level enhancement to Bennett’s sentence under U.S.S.G. § 2G2.2(b)(3)(B) because the offense involved “[d]istribution for the receipt, or expectation of receipt, of a thing of value, but not for pecuniary gain.”  In the course of using the peer-to-peer file-sharing network, Bennett provided to other network users the password to his collection of illicit materials in exchange for the other users’ passwords to their collections.  The district court sensibly determined that such an exchange involved a “thing of value” and applied the five-level increase.  The Second Circuit affirmed this aspect of the district court’s decision; the Court declined to take up a substantive reasonableness argument and invoked the discretion of the sentencing court to reject Bennett’s argument that his conduct could have supported a lesser charge with a 5-year mandatory minimum. 

The other pertinent finding of the district court—the actual length of Bennett’s sentence—fared worse on appeal.  In calculating Bennett’s sentence, the district court (1) acknowledged that the underlying offense had a statutory maximum sentence of 10 years under U.S.S.G. § 5G1.1(a); (2) stated that the Guidelines range was 11 to 14 years; and (3) sentenced Bennett to a below-Guidelines and below-statutory maximum sentence of 7 years. 

Even though the court below acknowledged the existence of the statutory maximum and imposed a sentence below that maximum, and even though Bennett did not raise this issue until oral argument on appeal, the Second Circuit found error in the district court’s recitation of the relationship between the Guidelines range and the statutory maximum.  Specifically, the Second Circuit found fault in the district court’s statements at sentencing which suggested that the Guidelines range and the statutory maximum were two independent figures; a remand was necessary because “[t]he District Court never corrected this error by indicating that the statutory maximum and the Guidelines range (both the minimum and the maximum) were the same: ten years.” 

Even though the district court imposed a sentence below the Guidelines range, the Second Circuit held that the district court’s error “affected Bennett’s substantial rights.”  In support of this conclusion, the Court invoked the Supreme Court’s recent teachings in Molina-Martinez v. United States, 136 S. Ct. 1338 (2016), that “[i]n most cases a defendant who has shown that the district court mistakenly deemed applicable an incorrect, higher Guidelines range has demonstrated a reasonable probability of a different outcome” and that “if the [sentencing] judge uses the sentencing range as the beginning point to explain the decision to deviate from it, then the Guidelines are in a real sense the basis for the sentence.”  Id. at 1346, 1345.  The Second Circuit also invoked “contemporary research on judicial decision making, which indicates that anchoring and other ‘contextual factors’ can affect the exact sentence imposed.” 

Bennett seems to offer two insights into the Second Circuit’s thinking, one of which applies to sentencing proceedings generally and one of which may be confined to child pornography offenses.  Broadly, the Court’s decision to remand even where the district court imposed a sentence well below both the statutory maximum and the Guidelines shows that the Second Circuit took to heart the Supreme Court’s concerns in Molina-Martinez.  The Circuit seems particularly attuned to the Guidelines’ anchoring effect and to the need to make clear that a statutory maximum extinguishes and takes the place of the Guidelines range that otherwise would apply.  This is a significant insight in a world in which most current federal criminal law practitioners did not practice law during the pre-Guidelines era.  If a district judge’s statements could reasonably be read to misconstrue this relationship and to reference the Guidelines range as a surviving, independent reference point notwithstanding a statutory maximum, then a defendant will have a very strong argument that a procedural error occurred and remand is needed.  For this Court to reach this conclusion even where a defendant received a below-the-range sentence suggests that almost any error in determining the Guidelines range can be the basis for a plain error finding and a resulting resentencing.

The narrower and perhaps more interesting takeaway from the Bennett decision involves what could be construed as the uneasiness of at least some Circuit judges with the length of criminal sentences in at least some child pornography cases.  On appeal, Bennett had also argued that his 7-year sentence was substantively unreasonable because it “was simply too long for an offender who is ‘not a pedophile and is unlikely to reoffend, and who holds an advanced education with unusual promise for the future . . . .’”  The Court declined to address that argument; because it found “procedural error” by the sentencing court, the Bennett panel did “not proceed to review the sentence for substantive reasonableness” and “emphasize[d] that [it] was taking no position, at this time, on Bennett’s substantive . . . contention.”  From this text, there is an implication that the Court may reach Bennett’s substantive unreasonableness argument should the district court arrive at the same below-the-range sentence on remand.

In this respect, the Bennett decision may be a procedural reasonableness decision animated by concerns of substantive reasonableness.  Indeed, this same dynamic was at play in another Second Circuit decision remanding the sentence of a child pornography offender.  See United States v. Brown, No. 13-1706 (June 14, 2016).  In Brown, a divided panel vacated and remanded a 60-year prison sentence for multiple counts of production and possession of child pornography under 18 U.S.C. §§ 2251(a), 2252A(a)(5)(B).  As detailed in a prior post on this blog, the Brown majority, sua sponte, found procedural error but spoke in language suggestive of a substantive reasonableness review, commenting on the length of the sentence and the need for the severity of the sentence to track the culpability of the defendant’s behavior.  Judge Droney dissented, accusing the majority of inventing a procedural error to “cloak[]” what was in fact a disagreement over the length of the sentence imposed by the district court. 

By invoking Brown, we by no means are suggesting that the Bennett panel engaged in such “cloaking”; but it is difficult to deny that concerns over the length of the sentence on the very unhappy facts of Bennett could have informed at least in part the panel’s analysis.  It suggests that joining a substantive reasonableness argument to a procedural reasonableness argument may in some cases increase the chances of a resentencing even where the substantive reasonableness argument on its own might not seem compelling.

-By Clinton W. Morrison and Harry Sandick