Monday, August 10, 2009

U.S. v. Vanderwerfhorst, No. 07-30336 (8-6-09). In this sentencing appeal, the defendant argues that the court did not comply with the necessary procedures, such as Rule 32 notice, nor did the court make the necessary findings. The 9th (Tallman joined by Beezer and M. Smith) affirmed the sentence. First, objections were not made at sentencing, and so the review was plain error. That is a tough standard to meet, and the defendant did not. The 9th found that the sentence (168 mos as opposed to the Guidelines 120 mos) was a variance and not a departure, and so Rule 32 notice did not have to be given, and that counsel should have been aware of the facts supporting a variance. The 9th also found that the court had considered the 3553 factors. The sentence itself was above the Guidelines but below the max of 20 years, and was reasonable. This case involved possession of child porn, with some aggravating facts such as his destruction of the computer, and a prior. It is worthy of note though that the court's great concern about sexual predators, and defendant's "sickness," is not solved by the increase of 48 months. The defendant is still going to get out, and he will still face a lifetime of SR and sexual counseling. The extra time could be considered as being greater than necessary. Alas, the world of Rita / Gall / Kimbrough and plain error gives such great discretion to the court.


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