Metropolitan News-Enterprise


Monday, December 7, 2002


Page 1


Ninth Circuit Rejects Child Pornography Sentence as Too Lenient


By KENNETH OFGANG, Staff Writer/Appellate Courts


A federal district judge abused his discretion when he sentenced a Missoula, Mont. man to 44 months in prison, rather than the guidelines term of 87 to 108 months, for possessing and distributing child pornography, the Ninth U.S. Circuit Court of Appeals ruled Friday.

The court sent Aaron Thompson’s case back to U.S. District Judge Donald W. Molloy of the District of Montana for a second look at the sentence.

The FBI obtained a search warrant and raided Thompson’s home after undercover agents corresponded with him online and obtained offers to exchange child pornographic images. They seized his computer, discovering more than 10,000 images on the hard drive and later determining that he had used the computer to send more than 47,000 images over the previous three months.

Thompson agreed to plead guilty with the understanding that the prosecution would recommend an 87-month sentence, the bottom of the guidelines range as calculated by the presentence investigator. But Molloy opted to sentence him to half that term, saying the case fell outside the “heartland” of the Sentencing Guidelines.

The judge noted that Thompson had no prior criminal record and no history of drugs or sexual abuse, that he was a college graduate, and that there was no indication that he was likely to commit a sexual offense against a child.

Molloy also expressed concern that a longer sentence would harm his prospects of rehabilitation, because the federal prison system only treats sex offenders at one facility—in Butner, N.C.—and that prisoners are required to serve a substantial portion of their sentences before they can begin therapy there.

The government appealed, arguing that Molloy should have imposed the recommended sentence and urging the appeals court to reverse the judgment and remove the district judge from the case.

Departure Unjustified

Judge Ronald M. Gould, writing for the Ninth Circuit, agreed that the sentence had to be reconsidered. While district judges are owed “substantial deference” with regard to their sentencing choices, Gould wrote, Molloy’s explanation failed to justify the “striking” departure.

Under the “heartland” concept, the appellate jurist explained, discretionary variances from the guidelines sentencing range—known as departures—may be granted on grounds other than those specified by the Sentencing Commission if the facts of the case are significantly different from those in other cases to which the same guidelines range applies.

“In this case, the court did not make such a comparison, and there is little in the record to show that Thompson’s conduct differs from that of other offenders,” Gould explained.

Lack of a prior criminal record is not a valid criterion for departure, the judge elaborated, because it is already factored into the calculation of the guidelines range. Educational attainments are generally not considered grounds for departure while Thompson’s lack of history of sexual abuse was not relevant since he was not being sentence for sexual abuse, Gould added.

Home Computer

The fact that Thompson’s crime only involved the use of his home computer also did not justify departure, Gould said, distinguishing a case in which the court allowed a departure for a defendant whose only criminal conduct was viewing images that had been downloaded to his computer without his active involvement and allowing them to be stored in the computer’s cache of temporary internet files.

Gould contrasted the facts of that case with Thompson’s conduct in indexing images for quick access and in sending and receiving thousands of images.

Molloy’s concern for Thompson’s ability to obtain treatment, Gould said, was “judicious and understandable” but not sufficiently mitigating to support a departure.

The panel declined, however, to order that the defendant be resentenced by another judge. There was no indication of bias or impropriety on the district judge’s part, Gould said in a footnote.

Senior Judge Robert R. Beezer joined in the opinion.

Judge Marsha Berzon concurred separately. On remand, she said, the district judge should consider other grounds for departure suggested in the presentence report, such as the extent of Thompson’s post-offense rehabilitation and the potential for obtaining immediate treatment at the Butner facility if a reduced sentence is imposed.

The case is United States v. Thompson, 01-30279.


Copyright 2002, Metropolitan News Company