Finding that a sentence of four months in prison was too lenient for a man who confessed to possessing child pornography, the 3rd U.S. Circuit Court of Appeals has ruled that a New Jersey federal judge improperly ignored the federal sentencing guidelines that called for a prison term in the range of 37 to 46 months.
Although the guidelines are now merely advisory, U.S. Circuit Judge Kent A. Jordan said the 3rd Circuit has already held that judges must continue to calculate the guidelines range and must consider all of the sentencing factors mandated by Congress before imposing sentence.
"Because the guidelines reflect the collected wisdom of various institutions, they deserve careful consideration in each case. Because they have been produced at Congress's direction, they cannot be ignored," Jordan wrote in United States v. Goff.
In Stefan Goff's case, Jordan said, the four-month sentence was imposed by U.S. District Judge Anne E. Thompson with "barely a mention" of the guidelines, which "suggests they were ignored."
Jordan's opinion, which was joined by U.S. Circuit Judges D. Michael Fisher and Jane R. Roth, reflects a recent trend by the 3rd Circuit to flex its muscle in criminal cases by overturning sentences it deems "unreasonable."
Goff, an elementary school teacher who had worked for 30 years at the prestigious Chapin School in Princeton, N.J., was arrested after federal agents seized his home computer and found hundreds of electronic images of child pornography.
Although Goff pleaded guilty, his lawyer argued that he should have been charged only with possession of seven images, since the 600 others images were all found in a folder of "deleted" items.
Attorney Jerome A. Ballarotto of Trenton, N.J., argued that the focus in the guidelines on the number of pornographic images possessed by a defendant ended up dictating a higher-than-warranted sentence because Goff had only a few images readily accessible and the rest were all images that he had viewed in the past and tried to delete.
Ballarotto also argued at sentencing that Goff's crime was a victimless one, committed when he was "all by himself, in his room," and said a psychiatrist had determined that Goff was not a pedophile and was no danger to the community.
But Jordan found that Thompson erred when she accepted that argument, and that she should instead have recognized the seriousness of Goff's child pornography crimes because consumers create the demand that leads to exploitation of children.
"Goff has attempted to downplay the nature and seriousness of his crime," Jordan wrote, "arguing in his brief that he was simply a 'curious, casual user' of the child pornography Web site and implying that his was a victimless crime because viewing the pornography was 'a solitary, private activity of short duration.'"
Thompson "appears to have accepted this line of reasoning," Jordan said, noting that the lower court judge had interrupted the prosecutor's argument that possession of child pornography is "a serious matter," by saying: "But it's truly a psychological crime. It is not a taking crime. ... Almost one might say a psychiatric crime." The evidence, Jordan said, exposed the flaw in that logic.
One of the images found on Goff's computer was of "an adult male performing oral sex on a prepubescent female," Jordan noted.
Goff paid for access to hundreds of such images, Jordan noted, and therefore played a key role in the child pornography chain of exploitation.
"Children are exploited, molested, and raped for the prurient pleasure of Goff and others who support suppliers of child pornography," Jordan wrote.
"Their injuries and the taking of their innocence are all too real. There is nothing 'casual' or theoretical about the scars they will bear from being abused for Goff's advantage."
Jordan said the lower court should have recognized that the defense effort "to draw a spectator-vs.-participant distinction" showed not that Goff's pornography crime was less severe, but instead that Goff failed to fully appreciate that severity.
"The simple fact that the images have been disseminated perpetuates the abuse initiated by the producer of the materials," Jordan wrote.
"Consumers such as Goff who 'merely' or 'passively' receive or possess child pornography directly contribute to this continuing victimization. Having paid others to 'act out' for him, the victims are no less damaged for his having remained safely at home, and his voyeurism has actively contributed to a tide of depravity that Congress, expressing the will of our nation, has condemned in the strongest terms," Jordan wrote.
Child pornography is "so odious," Jordan said, that there is "a real risk that offenders will be subjected to indiscriminate punishment based solely on the repugnance of the crime and in disregard of other Congressionally mandated sentencing considerations."
Thompson understood that risk, Jordan said, and "was clearly and commendably endeavoring to avoid the tendency to ignore the individual defendant because of the enormity of his crime."
But in doing so, Jordan said, Thompson "ended up erring in the opposite direction" by placing "undue emphasis on Goff's personal life" and failing to give "adequate weight to the severity of his offense."
Jordan found that Thompson's sentence was substantively and procedurally flawed.
Thompson failed to follow the three-step sentencing process mandated by the 3rd Circuit's decision in United States v. Gunter, Jordan said, which calls for judges to conduct a complete calculation of the guidelines, including rulings on all objections.
She also failed to properly follow the final step of the Gunter process, which calls for consideration of all the sentencing factors outlined by Congress in Section 3553, including the need to avoid disparity in the sentences of similar defendants.
"That factor should have been undertaken with particular care in this case, given that the district court sentenced Goff to a term of imprisonment far below the sentences given to similar offenders," Jordan wrote.
Other defendants sentenced for possession of child pornography in New Jersey have received "much harsher sentences" than Goff, Jordan noted, citing a defendant who was caught as a result of the same investigation and sentenced to 28 months in prison.
"As a result, Goff's sentence creates a potential disparity in sentence for those convicted of possession of child pornography in New Jersey, and across the country, based on little, if anything, more than the luck of which judge is assigned to a particular case," Jordan wrote.
Likewise, Jordan found that Thompson failed to properly consider Section 3553's mandate that courts focus on the need to deter others.
"Deterring the production of child pornography and protecting the children who are victimized by it are factors that should have been given significant weight at sentencing, but in fact received not a word from the district court. If they were considered at all, it is not apparent on this record," Jordan wrote.
Ballarotto was out of the country and could not be reached for comment.