2nd Circuit Faults Pornography Enhancements, Vacates Sentence

Mark Hamblett

New York Law Journal

In vacating the sentence of an admitted child pornographer, a federal appeals court in Manhattan attacked mandatory sentencing enhancements for virtually ensuring defendants will hit the statutory maximum regardless of the severity of their crimes.

The 2nd U.S. Circuit Court of Appeals on Tuesday found that the sentence of Justin K. Dorvee was both procedurally and substantively unreasonable and that Dorvee would have received a lighter sentence had he actually sexually assaulted a child.

Judge Barrington D. Parker said the current scheme makes an "ordinary first-time offender" likely to qualify for a sentence near the statutory maximum of 20 years "based solely on sentencing enhancements that are all but inherent in the crime of conviction."

Therefore, he said, "adherence to the [sentencing] guidelines results in virtually no distinction between defendants like Dorvee, and the sentences for the most dangerous offenders who, for example, distribute child pornography for pecuniary gain and who fall in higher criminal history categories."

Dorvee is still likely to receive a long prison sentence when his case is remanded to Northern District of New York Judge Thomas J. McAvoy following the appeal in United States v. Dorvee, 09-0648-cr, which Parker decided along with Judge Jose A. Cabranes and, sitting by designation, Judge Stefan R. Underhill of the U.S. District Court for the District of Connecticut.

After establishing an online relationship with an undercover police officer posing as a 14-year-old boy named "Seth," and sending him videos of minors engaged in sexually explicit acts, Dorvee arranged to meet, photograph and have sex with Seth.

Dorvee was arrested in Warren County on Oct. 19, 2007. A search of his home and computer uncovered thousands of still images and more than 100 videos of minors engaged in sexually explicit conduct, videos he traded on the Internet with some 20 other individuals.

Dorvee also admitted to taking about 300 pictures of neighborhood children in an effort to capture images of their feet.

He pleaded guilty to distribution of child pornography under 18 U.S.C. §2252A(a)(2)(A). The Probation Department reported that several enhancements in §2G2.2 of the guidelines applied to Dorvee, including those for distributing material involving prepubescent minors, distribution of material intended to get a minor to engage in sexual conduct and distribution of material portraying sadistic or masochistic conduct.

Dorvee's offense level led to a guidelines range calculation of 262 to 327 months in prison, but the statutory maximum for his offense is 20 years, or 240 months.

At sentencing, Judge McAvoy took note of reports by one therapist who described Dorvee as socially isolated and suicidal, and a second therapist who said he was "not a predator" and "does not have the personality to initiate any dangerous actions."

McAvoy agreed that Dorvee would never "go out and drag some little boy off the street and rape him and murder him," but the judge said he was a "pedophile" who, if "given the opportunity ... would have sexual relations ... with a younger boy, ages 6 to 15."

McAvoy gave Dorvee the maximum sentence, minus time served on related state convictions, a total of 19 years, five months and 16 days. He called the sentence "relatively far" below the guidelines range of 262 to 327 months.

HARSH PENALTIES

On the appeal, Judge Parker said the lower court made a procedural error in treating the 262-to-327- month range "as though it were a benchmark for any variance."

The 19-year-plus sentence was not, in fact, "relatively far" below the 20-year maximum, he said, and this "apparent miscalculation" carried "serious consequences for the defendant."

"If the district court intended to grant the defendant a sentence 'relatively far below the guideline,' Dorvee did not receive the benefit of such an intention," he said, and, "If the district court miscalculates the typical sentence at the outset, it cannot properly account for atypical factors and we, in turn, cannot be sure that the court has adequately considered" all of the factors in §3553(a) of the guidelines.

The circuit explained why the sentence was also "substantively unreasonable."

Parker said the panel was "troubled by the district court's apparent assumption that Dorvee was likely to actually sexually assault a child, a view unsupported by the record evidence yet one that plainly motivated the court's perceived need 'to protect the public from the further crimes of the defendant.'"

He continued, "Dorvee appears to have been punished as though he already had, or would, sexually assault a child, despite medical testimony to the contrary and Dorvee's lack of any such criminal history. The irony of the court's conclusion ... is that the guidelines actually punish some form of direct sexual contact with minors more leniently than possession or distribution of child pornography."

For example, Parker said, "An adult who intentionally seeks out and contacts a 12-year-old on the Internet, convinces the child to meet and to cross state lines for the meeting, and then engages in repeated sex with the child" would have a guidelines range of 151 to 188 months in prison.

The problem, he said, was that Congress, sometimes over the objection of the U.S. Sentencing Commission, has instructed the commission to impose ever harsher penalties in amending the guidelines under §2G2.2.

"The §2G2.2 sentencing enhancements cobbled together through this process routinely result in guidelines projections near or exceeding the statutory maximum, even in run-of-the-mill cases," Parker said.

"District judges are encouraged to take seriously the broad discretion they possess in fashioning sentences under §2G2.2 -- ones that can range from non-custodial sentences to the statutory maximum -- bearing in mind they are dealing with an eccentric guideline of highly unusual provenance which, unless carefully applied, can easily generate unreasonable results."

Parker said, "While we recognize that enforcing federal prohibitions on child pornography is of the utmost importance, it would be manifestly unjust to let Dorvee's sentence stand."

Paul J. Angioletti of Staten Island argued for Dorvee.

"To me, the 2nd Circuit did two things," Angioletti said. "They figured out who the client was and who he wasn't and they also figured out the problems with these enhancements that take virtually all of these offenders up to the statutory maximum."

Assistant U.S. Attorney Paul D. Silver argued for the government.