Ideally, en banc decisions by the 11th U.S. Circuit Court of Appeals give clear direction to lower courts on how to deal with muddled areas of the law.
But in Tuesday's en banc argument on criminal sentencing, the 11th Circuit's judges wrestled with which way the court should point.
Pushing to one side were judges who were uncomfortable second-guessing a Florida district court judge who sentenced to 17 1/2 years in prison a man who admitted to recording his sexual abuse of children. On the other side were judges who seemed to agree with prosecutors challenging the sentence as too lenient, given the nature of the crime at issue.
At stake is an apparent need for clarity in the 11th Circuit's application of U.S. Supreme Court rulings that counsel federal appellate judges to adopt a deferential approach to lower court sentencing decisions, even those that fall outside of the federal sentencing guidelines.
The Supreme Court in 2005 said the guidelines must be considered merely advisory because making them mandatory would violate defendants' constitutional rights to trials by jury. Yet in several instances 11th Circuit judges have balked at signing off on sentences more lenient than those recommended by the guidelines.
Tuesday's case about William Irey's sentence posed a challenge for the 11th Circuit's effort at providing clarity to sentencing decisions. The circumstances of Irey's case are the sort that give judges difficulty, and many of the judges on Tuesday seemed more interested in the particulars of Irey's case than formulating a uniform approach for sentence review.
Irey, who at one point owned a large construction company, pleaded guilty to a child sex crime that the sentencing judge in Florida described as "horrific." According to prosecutors, Irey sexually abused more than 40 children, some as young as 4 years old. They say he on several occasions traveled to Cambodia where he produced images of himself sexually abusing prepubescent children.
The result, prosecutors say, was a series of videotapes and photographs known as the "Pink Wall" series, so named because a pink wall was visible in many of the pictures circulated on the Internet. Some of the images involved what a three-judge panel of the 11th Circuit termed "torture."
The federal sentencing guidelines, first developed by a congressionally authorized commission in the mid-1980s, counseled U.S. District Judge Gregory A. Presnell of Orlando to sentence Irey to life in prison.
But in what is not an unusual conflict between the guidelines and the law, the federal statute criminalizing Irey's conduct said the sentence for the crime should range between 15 and 30 years.
The government asked for the maximum 30 years allowed by the law, but Presnell said he was persuaded by certain factors -- such as Irey's relatively advanced age of 50, and his family's pledge to remain supportive of him -- to give him the lesser sentence of 17 1/2 years.
It appeared that a key to Presnell's decision was testimony by Dr. Ted Shaw, the defendant's mental health expert. Shaw testified that pedophilia was "not a disorder that someone chooses" and is treatable. He testified that Irey had been making progress in therapy and, as far as his likelihood to re-offend, was in the "medium low to medium or moderate risk categories."
In sentencing Irey, Presnell said that "Irey and his family and friends are also victims here," noting that "one of the bad features of [the Internet] is that it has made possible ... an epidemic of child pornography."
Presnell has been an outspoken critic of federal prosecutors' arguments undercutting district judges' discretion on sentencing issues, saying in 2005 that the Department of Justice "wants to be prosecutor and judge."
Prosecutors appealed Irey's sentence, saying Presnell relied too heavily on the idea that pedophilia is an illness.
The 11th Circuit panel who heard the government's appeal -- then-Chief Judge J.L. Edmondson, Judge Gerald B. Tjoflat, and Senior Judge James C. Hill -- suggested Presnell's sentence might have been too low. But Edmondson wrote for the panel, "Appellate judges are not authorized to substitute their personal views of what might be the best sentence for the sentence imposed by the district judge."
Hill added his own opinion, saying that he "reluctantly" agreed with the panel. He added, "Had I been given the heavy responsibility of sentencing in this case, my only regret would be that in the halls of Congress, the occupants of that legislative branch place an upward limit on this defendant's confinement."
The 11th Circuit granted a full court rehearing of the case, an unusual act under normal circumstances when the losing side requests en banc review. This move was truly remarkable because prosecutors hadn't requested it, a point Judge Charles R. Wilson raised early in Tuesday's argument by Assistant U.S. Attorney David P. Rhodes.
"The defendant in this case committed some of the most vile, evil crimes imaginable," Rhodes began. He argued that Irey's sentence was what someone who took one picture of a child in a sexually explicit position and brought it back to the United States would receive.
Rhodes indicated that he agreed, but he noted that the district judge knew about all of the crimes committed by Irey. "The district court knew ... this was a life sentence case," said Rhodes.