Sunday, May 01, 2011

Case o' The Week: (De)construction Ahead - Henderson and Child Porn Guidelines

At a fundamental level, Apprendi, Booker, Kimbrough and Gall are skirmishes in a separation-of-powers war between Article III judges and Congress, arising from the politically-expedient policy decisions that have plagued federal sentencing for the last several decades. Plainly-stated, Congressionally-dictated sentencing guidelines flatly intrude on what judges do best: judge.

If you had to choose, who is one of the best jurists to bear the Bench's banner in this battle?

We think so, too. United States v. Henderson, 2011 WL 1613411 (9th Cir. Apr. 29, 2011) (Fletcher, B., J., writing majority opinion explaining child pornography guideline is squarely subject to Kimbrough deconstruction challenge and must be addressed by district court when raised), decision available here.

Players: Remarkable decision by Judge Betty Fletcher, equally good concurrence by Judge Berzon, additional concurrence by Judge Callahan. Important victory by CD Cal AFPD James Locklin.
Facts: An undercover FBI Agent discovered Henderson through Limewire and downloaded child porn from him; there followed a search and a full confession. Id. at *1. Over 8,000 files were recovered, as well as hard-copy pictures of actual female minors who had been brought into Henderson’s home. Id. (There were no allegations of sex with these minors).

Henderson pleaded guilty to possession of child porn, with guidelines in the 108-120 range. Id. at *2. Based on Henderson’s tragic history of childhood abuse and documented mental illness, the Probation Office recommended a departure to 70 months. Id. The district court departed downwards to 78 months, but balked on the defense recommendation of 36 months. Id. at *2-*3.

At sentencing, the district court refused to engage with the defense policy challenge to the child porn guidelines explaining, “I’m going to need direction from the Ninth Circuit before I accept those other arguments . . . .” Id. at *3.

Issue(s): “Henderson challenges the district court’s failure to exercise the discretion accorded it in Kimbrough v. United States, 552 U.S. 85 (2007) to vary from the Sentencing Guidelines based on policy disagreements with them and not simply based on an individualized determination that they yield an excessive sentence in a particular case.” Id. at *1.

Held: “We . . . hold that, similar to the crack cocaine Guidelines, district courts may vary from the child pornography Guidelines, § 2G2.2, based on policy disagreement with them, and not simply based on an individualized determination that they yield an excessive sentence in a particular case.” Id. at *7 (footnote omitted). “[A] district court commits procedural error when it fails to appreciate its Kimbrough discretion to vary from the child pornography Guidelines based on a categorical policy disagreement with them.” Id. at *8.

Of Note: “District judges who, after having considered § 2G2.2, conclude that it constitutes bad advice should be encouraged to reject it as such.” Id. at *9 (Berzon, J., concurring) (emphasis added). So explains concurring Judge Berzon, who reveals the “anomalous” history of a guideline that produces “unjust and sometimes bizarre results.” Id. at *8 (Berzon, J., concurring). Henderson is a must-read for anyone with a child porn case in the Ninth: it reflects the palpable distrust of the Commission’s child pornography guidelines by the federal bench, and is a beautifully-detailed chronicle of how this particular guideline is the by-product of Congressional -- intervention -- instead of a reasoned, empirical analysis by the Sentencing Commission.

How to Use: Almost any district judge will be more comfortable with a variance based on a defendant’s individualized factors, rather than a full-frontal assault on the Sentencing Guidelines. In reality, however, Henderson (and all Kimbrough policy attacks) can make those individualized variances more attractive: after all, a significantly substantial variance based on regular § 3553(a) factors can moot the defense pitch for a Kimbrough reduction.

For those admirable D.J.’s who are feeling their Article III oats, however, Henderson is the green light to gambol after years of chaffing under the guideline yoke. Judge Fletcher carefully explains how Henderson is right in line with Mitchell, which opened the season on the Career Offender guideline for Kimbrough policy attack. Id. at *7 n.5. What’s the next guideline to fall? Our nominee is § 2L1.2, the hated and often-arbitrary illegal reentry guideline. For a great attack on this lousy guideline, see article here.
For Further Reading: WD Mo. AFPD Troy Stabenow is a hero of the defense community for his early and exacting deconstruction of the child pornography guidelines. See Troy Stabenow, Deconstructing the Myth of Careful Study: A primer on the Flawed Progression of the Child Pornography Guidelines, Jan. 1, 2009, available here.

How good is Troy’s piece? It is cited very favorably in the first paragraph of Judge Berzon’s concurrence (and she is not the first appellate judge to do so). Id. at *8 (Berzon, J., concurring).

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at


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