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Guidelines Case Analysis

The decision is problematic for at least three reasons.

First is the court’s reliance on the defendant’s lack of prior imprisonment. This is not a defendant-specific reason, but will be present for all defendants with a criminal history of Category I. Imposing a sentence below the guidelines for this reason is tantamount to a judicial policy determination that the guidelines are simply too high for all first-time offenders.

The Sentencing Commission recognized this, and accordingly drafted U.S.S.G. 4A1.3(b)(2)(A): “A departure below the lower limit of the applicable guideline range for Criminal History Category I is prohibited.”

Even with advisory guidelines, imposing a below-guideline sentence for a Category I defendant because of the lack of prior criminal history is not a defendant-specific reason that should be given approval, but should be recognized as a policy disagreement on the part of the individual judge.

Second, the court approved the district court’s reliance on the defendant’s religious background, contrary to U.S.S.G. 5H1.10, which provides that race, sex, national origin, creed, religion and socio-economic status are not relevant in the determination of a sentence.

In U.S. v. Long, 425 F.3d 482, 488 (7th Cir. 2005, the court wrote, “Freed from the mandatory nature of [the structure of the guidelines], the court will be free to consider the factors outlined in 18 U.S.C. 3553(a), including those that were specifically prohibited by the guidelines and those that are not constitutionally prohibited such as race or sex (emphasis added).”

Courts are thus now free to base a sentence on such factors as military or public service, employment history, or disadvantaged upbringing. However, religion, like race or sex, obviously remains a constitutionally prohibited factor for imposing a sentence.

The district court’s reliance on religious attendance is particularly disturbing in this case, because Baker was a youth minister at his church.

At his sentencing, the director of the church’s youth ministry testified that he did not consider Baker a danger to society, and that an investigation revealed no indication of inappropriate behavior between Baker and the children under his charge. Even if this is true, the fact that a church youth minister possessed sadistic child pornography and frequented a chatroom named “gaymenteenboys” should be deemed an aggravating factor, not a mitigating one.

Finally, the court held that the district court gave proper consideration to Congressional intent in passing the PROTECT Act. One provision of the Act forbids below-guideline sentences for child sex offenses. In U.S. v. Grigg, 442 F.3d 560 (7th Cir. 2006), the Seventh Circuit held this provision unconstitutional. However, it added that district courts are required to give respectful attention to Congress’ intent that child crimes be punished severely.

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In the case at bar, the district court made this statement: “there are children out there who are very aggressive sexually, who are shockingly advanced in their sexuality, and — but still they need protection from their own foolishness.”

Specifically addressing this statement in a footnote, the Seventh Circuit concluded, “The district court’s statements at the sentencing hearing demonstrate respect for [Congress’ manifest intent that child crimes be punished with the severity they deserve].”

If the district court’s statement in this case is sufficient to comply with the requirements of Grigg, it is hard to imagine what would be deemed insufficient.

Thus, the court should have held that the sentence was not adequately explained for three separate reasons: lack of prior criminal record is not an appropriate factor to consider; reliance on religion is unconstitutional; and the district court paid insufficient respect to Congressional intent as required in Grigg.

– David Ziemer

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David Ziemer can be reached by email.

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