Academic journal article Harvard Law Review

Criminal Law - Sentencing Guidelines - Second Circuit Holds Within-Guidelines Child Pornography Sentence Procedurally and Substantively Unreasonable

Academic journal article Harvard Law Review

Criminal Law - Sentencing Guidelines - Second Circuit Holds Within-Guidelines Child Pornography Sentence Procedurally and Substantively Unreasonable

Article excerpt


The child pornography sentencing guideline--section 2G2.2 of the U.S. Sentencing Guidelines (1) --faces mounting scholarly and judicial criticism that it is an unduly harsh and empirically unsupported product of political posturing. (2) A recent surge in prosecutions for child pornography crimes has therefore been accompanied by a wave of below-guideline variances. (3) Recently, in United States v. Dorvee, (4) the Second Circuit joined this trend by holding a within-Guidelines sentence under section 2G2.2 procedurally and substantively unreasonable. Although Dorvee may raise concerns about judicial discretion, its analysis is grounded and structured by idiosyncratic features of section 2G2.2, institutional checks and balances on sentencing policy, and standards derived from administrative and constitutional law. Dorvee's main virtue is thus a sophisticated and balanced approach to sentencing that should powerfully influence use of the Guidelines.

Justin K. Dorvee was arrested on October 19, 2007, when he arrived at a parking lot in upstate New York to meet, photograph, and engage in sexual conduct with a fourteen-year-old boy named "Seth." (5) "Seth," however, was actually an undercover officer with the Warren County Sheriff's Office. (6) Eleven months later Dorvee pled guilty to one count of distribution of child pornography in violation of 18 U.S.C. [section] 2252A(a)(2). (7) He admitted to engaging in sexually explicit conversation online with two persons he believed to be fourteen-year-old boys--both undercover officers--and to transmitting videos of himself masturbating. (8) A post arrest search of Dorvee's residence yielded thousands of images and at least 100 videos depicting minors engaged in sexually explicit conduct. (9) Dorvee admitted to trading these materials, which included depictions of prepubescent minors and sadomasochistic conduct, with approximately twenty people online. (10)

A presentence report (PSR) calculated an initial range of 262 to 327 months under section 2G2.2. (11) However, because a statutory maximum becomes the Guidelines sentence when it is lower than an initial calculation, the PSR set Dorvee's Guidelines sentence at 240 months. (12) Dorvee responded by objecting to the application of several section 2G2.2 enhancements and requesting a non-Guidelines sentence. (13) His submission included a psychological evaluation reporting that he was "simply too passive, shy, socially anxious, retiring, introverted, submissive, unsure of himself and distrustful" to "push or develop a relationship with any other person, child or adult, unless the other person took the lead." (14) This report concluded that Dorvee was "not a predator" and "unlikely to re-offend" given proper treatment. (15)

Judge McAvoy sentenced Dorvee to 240 months, less 194 days for time served on a related state sentence. (16) Discounting expert testimony, the court expressed concern that if "given the opportunity ... [Dorvee] would have sexual relations ... with a younger boy, ages 6 to 15." (17) It also explained that, under 18 U.S.C. [section] 3553(a), this twenty-year sentence would achieve the penological goals of specific and general deterrence, public safety, and rehabilitation. (18) Rejecting Dorvee's plea for a non-Guidelines sentence, the court reasoned that "the guideline sentence is 262 to 327, and [the] sentence imposed ... is relatively far below the guideline, although not terribly far." (19) Dorvee appealed, arguing that this sentence was procedurally and substantively unreasonable and that the process used to enact one of the applicable enhancements violated the separation of powers. (20)

The Second Circuit vacated and remanded for resentencing. Writing for the panel, Judge Parker (21) held Dorvee's twenty-year sentence procedurally and substantively unreasonable. …

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