Court considers disparate sentences

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The Seventh Circuit held on Nov. 2 that the sentencing guidelines’ admonition to avoid disparate sentences extends to disparities resulting from proper application of the guidelines. However, the court concluded that a defendant must do more than merely cite a few examples to show unwarranted disparity, of lower sentences in other cases.

After a trial, Ernest A. Newsom was convicted of one count of production of child pornography, 22 counts of receiving child pornography, and one count of possession of child pornography. His victims included his own daughter and his ex-girlfriend’s daughter, as well as unidentified children in hundreds of other pictures found on his computer.

He was sentenced to 324 months in prison, and appealed both his sentence and the denial of a suppression motion. In an earlier opinion this year, U.S. v. Newsom, 402 F.3d 780 (7th Cir. 2005)(Newsom I), the Seventh Circuit affirmed the denial of the suppression motion, and held that the district court properly calculated the guideline range. However, the court issued a limited remand pursuant to U.S. v. Paladino, 401 F.3d 471 (7th Cir. 2005).

In doing so, the court encouraged the lower court to consider whether the sentence, although within the guidelines, may be unreasonably high, by failing to serve the goal of marginal deterrence — reserving the harshest sentences for the most culpable defendants.

On the limited remand, the district court informed the court that it would impose the same sentence even under advisory, rather than mandatory guidelines.

In its explanation, the district court pointed to Newsom’s flight from the jurisdiction before trial, the harm he inflicted on his victims, and the protection of the rights of the children involved. The court’s analysis addressed some, though not all, of the factors listed in 18 U.S.C. 3553(a), including the “nature and circumstances of the offense,” “the need

. . . to reflect the seriousness of the offense,” deterrence, and protecting the public.

The Seventh Circuit invited response from the parties, and Newsom challenged the sentence on two grounds: that the district court failed to consider his personal history; and that the sentence is unreasonable because others who committed more egregious crimes received shorter sentences, inconsistent with sec. 3553(a)(6).

The Seventh Circuit affirmed in an opinion by Judge Diane P. Wood.

The court first found that the district court did not fail to take into account his individual circumstances under sec. 3553(a)(1).

In U.S. v. Dean, 414 F.3d 725 (7th Cir. 2005), the court held that sentencing courts must specifically address individual factors only if contested facts are material to the sentence.

Addressing Newsom’s sentence, the court concluded, “we see no indication that there was a contested issue of fact relating to the personal characteristics Newsom has highlighted. It is unfortunate that the court did not mention these points in its order, since Newsom had relied heavily on them on remand, but the court must have thought this unnecessary because the government did not take issue with any of them. It is their significance that was contested.”

Turning to whether Newsom’s sentence was disparate relative to other defendants, the court acknowledged the issue was “a closer call.”

The court noted that, prior to U.S. v. Booker, 125 S.Ct. 738 (2005), disparities resulting from proper application of the Guidelines were not a permissible reason for departing from them. Post-Booker, it is a permissible consideration. The court wrote, “Now that the district court is obliged directly to confront all of the sec. 3553(a) factors, however, comparison of sentences has become a permissible part of the overall sentencing determination.”

Newsom cited three cases as examples of shorter sentences imposed on defendants whose crimes, Newsom argued, were more heinous than his own.

In U.S. v. Cunningham, 405 F.3d 497 (7th Cir. 2005), the defendant seduced a 14-year-old using the Internet, had sexual intercourse with her, and took pictures. He was sentenced to 210 months in prison.

In U.S. v. Schmeilski, 408 F.3d 917 (7th Cir. 2005), the defendant used his digital camera to produce pornographic pictures of his three teen-aged stepdaughters and downloaded more than a thousand other such images from the Internet. He was sentenced to 213 months.

Finally, in U.S. v. Snyder, 189 F.3d 640 (7th Cir. 1999), the defendant was convicted of producing, receiving, and distributing child pornography, as well as possessing child pornography with intent to sell, after a co-conspirator brought an 11
-year-old to his house, where the defendant engaged in sexual activities with him, some of which were recorded and distributed on the Internet. He was sentenced to 168 months.

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The court acknowledged that New-som’s crimes may not be as egregious as these three, but noted differences in each case from which the district court could justify a longer sentence for Newsom.

Cunningham involved a single crime and single victim, not 24; in Schmeilski, the defendant pleaded guilty; and in Snyder, the defendant was not in a position of authority or trust relative to the victim, and only one victim was involved, even if the crime was particularly egregious. The court also noted that none of those cases involved an enhancement for obstructing justice.

The court also cited other cases in which defendants received sentences comparable to Newsom’s. In U.S. v. Ohlinger, 377 F.3d 785 (7th Cir. 2004), the defendant was sentenced to 360 months in prison after pleading guilty to one child pornography offense. And, in U.S. v. Danser, 270 F.3d 451 (7th Cir. 2001), the defendant received 370 months for child pornography-related charges arising from his improper relationship with his daughter.

Finally, the court noted that Newsom did not even receive the highest sentence available under the Guidelines, which was 365 months. Accordingly, the court held that the sentence was not unreasonable, and affirmed.

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David Ziemer can be reached by email.