A blog of the Philadelphia Bar Association’s Criminal Justice Section

By Burt Rose

In UNITED STATES v. HENDERSON, No. 09–50544, April 29, 2011, the Ninth Circuit ruled that under Kimbrough v. United States, 552 U.S. 85, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007), district judges are at liberty to reject any Guideline on policy grounds and that district judges must enjoy the same liberty to depart from child porn guidelines based on reasonable policy disagreement as they do from the crack-cocaine Guidelines.

Henderson possessed 8,765 video and image files, of which approximately 80 were of identified victims. Eleven of those files were video files, some of them depicting prepubescent girls engaged in sexual acts. Henderson pled guilty to possession of child pornography in violation of 18 U.S.C. § 2252(a)(5)(B). Using the child pornography Guideline, U.S.S.G. § 2G2.2, and based on a total offense level of 30 and a criminal history II, the PSR calculated Henderson’s sentencing range to be 108 to 120 months, with the high end limited by the 10–year statutory maximum. Citing Kimbrough v. United States, Henderson argued that the child pornography Guideline, U.S.S.G. § 2G2.2, should be given little weight because it was not developed following an empirical approach but in response to Congressional directives, and does not comport with 18 U.S.C. § 3553(a) even in a mine-run case. The district court would not agree but imposed a 78–month sentence followed by a lifetime term of supervised release.

The Court held that similar to the crack cocaine Guidelines, district courts may vary from the child pornography Guidelines, § 2G2.2, based on a policy disagreement with them, and not simply based on an individualized determination that they yield an excessive sentence in a particular case. A district court commits procedural error when it fails to appreciate its Kimbrough discretion to vary from the child pornography Guidelines based on a categorical policy disagreement with them (if the judge has one). Because the court was unable to ascertain whether the district court committed procedural error by failing to appreciate its Kimbrough discretion to vary from the child pornography Guidelines, § 2G2.2, on policy grounds, the case was remanded to the district court to resentence exercising its Kimbrough discretion.

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