Sentencing — child pornography

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United States Court of Appeals For the Seventh Circuit

Criminal

Sentencing — child pornography

Where the district court failed to address the defendant’s argument that the sentencing guidelines are excessive with regards to mere possessors of child pornography, the sentence must be vacated.

“The district court also should have addressed Martin’s argument that the child-pornography guidelines do not approximate the goals of sentencing when applied to defendants convicted only of possession who have no history of contact offenses. In his sentencing memorandum, Martin cited studies for the general propositions that ‘child pornography possession offenses are not particularly difficult to deter’ and that ‘child pornography offenders “do not represent a high risk of recidivism.”’ In light of these citations, the district court’s statement that it had ‘not seen anything yet that suggests that there’s adequate treatment for that’ leaves us doubtful that the court considered Martin’s argument. And although we have held that it is harmless error for a district court to pass over a nonfrivolous argument that a sentencing guideline is invalid, see United States v. Aguilar-Huerta, 576 F.3d 365, 367-68 (7th Cir. 2009) (noting that validity is an issue of law and the argument can be made on appeal), Martin did not argue that the child-pornography guidelines should never be applied. Rather, he argued that they produce disproportionately long sentences for child-pornography possessors, like himself, with no history of contact offenses. Cf. id. (‘[W]e do not think a judge is required to consider, not a nonfrivolous argument that a guideline produces an unsound sentence in the particular circumstances of the case, but an argument that a guideline is unworthy of application in any case because it was promulgated without adequate deliberation.’).”

Vacated and Remanded.

12-3154 U.S. v. Martin

Appeal from the United States District Court for the Southern District of Illinois, Murphy, J., Per Curiam.