Thursday, April 28, 2011

U.S. v. Maier, No. 09-10397 (4-27-11) (B. Fletcher with Tallman and Rawlinson). The defendant pled straight up to two counts. Count one was receipt and distribution of child porn; count two was possession of the same. Defendant, a Naval police officer, when caught with the laptop in his dorm, admitted that he was addicted to child porn; that he was disgusted with himself; that he had turned in others to allay his feelings; and that he had been addicted since he was 17. At sentencing, the agent testified as to the thousands of photos sent and received; the young ages of the victims (some as young as one and three); and some of the disturbing images. Because the defendant pled to possession and receipt/distribution, the court had to vacate one for double jeopardy. The court vacated the possession, and sentenced on the receipt/distribution. The 9th upheld. It analyzed the double jeopardy issue as akin to sentencing, and that 3553 factors were implicated. In weighing and balancing these factors, and using the test in Rita, the court held that the receipt/distribution, with the higher penalty, was appropriate. Moreover, there is a presumption that the lesser offense should be vacated. The court did not abuse its discretion. The sentence was neither procedurally nor substantively unreasonable (210 months with lifetime supervision).


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