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Judges may take into account a diminished mental capacity when deciding whether to give a convicted child pornographer a downward departure under the federal sentencing guidelines, the 2nd U.S. Circuit Court of Appeals has ruled. The 2nd Circuit, vacating the 41-month sentence given by Southern District of New York Judge John S. Martin Jr. to a child pornographer with a mental disorder, said the judge “misapprehended his authority to depart on the basis of diminished capacity in this case.” The case involved Bruce Silleg, who was arrested in 2000 in possession of six videotapes and hundreds of downloaded images of child pornography on his computer. Probation officials found Silleg’s sentencing range under the federal guidelines was 41 to 51 months. Silleg moved for a downward departure below the 41 months and submitted the diagnosis of two psychiatrists who said he did not fit the definition of a pedophile, one who is stimulated by children, or paraphile, one who is stimulated by an object. The psychiatrists also agreed that Silleg suffered from a biochemical imbalance known as bipolar type II disorder, and that his condition was partly the cause for his possessing child pornography. One of the psychiatrists said Silleg was in a “hypomanic or manic episode” when he ordered the videotapes and downloaded the images, and “the usual controls that he or others might have over their behavior were reduced.” In examining whether Silleg’s condition caused him to possess the illegal pornography, Judge Martin questioned whether the guidelines already took mental conditions into account. Unlike a “bank robbery” or “forgery,” the judge said, “almost every person who gets involved in this type of thing does it in some greater or lesser degree because of some mental condition, some history of abuse.” Martin denied the downward departure, noting that he could not say “with a clear conscience” that the “[U.S.] Sentencing Commission did not adequately consider the factors that are present here when they adopted the guidelines that I must impose sentence under.” Knowing that defendants are not usually allowed to appeal the refusal of a district court to depart downwardly, Silleg invoked an exception to that rule, arguing that there was a “substantial risk” Judge Martin wrongly assumed he had no authority to depart under the guidelines. “The risk arises in part because this Circuit has not specifically recognized diminished capacity as a permissible basis for downward departure in child pornography cases,” Senior Judge Wilfred Feinberg said. Feinberg said departures can be granted under the guidelines where there exists an aggravating or mitigating factor that was not adequately considered by the U.S. Sentencing Commission. A NUMBER OF FACTORS In U.S. Sentencing Guidelines � 5K2.0, the judge said, the Sentencing Commission lists a number of factors that it could not fully take into account when it formulated the guidelines. These factors are known as “encouraged” bases for departure. Feinberg said that � 5K2.13 “expressly authorizes a downward departure ‘if the defendant committed the offense while suffering from a significantly reduced mental capacity.’” “We find no textual support for the apparent concern of the district court that the Sentencing Commission had already implicitly considered diminished capacity in developing guidelines for child pornography offenses, thereby rendering departure on that basis impermissible except in extraordinary circumstances,” he said. While the case was unique for the 2nd Circuit, Judge Feinberg said that other circuit courts that have considered the issue have found that diminished capacity as departure is available in child pornography cases. The court then remanded the case for resentencing and reconsideration of Silleg’s motion for a downward departure. Judge Chester J. Straub and 8th Circuit Judge Frank J. Magill, sitting by designation, joined in the opinion. Richard Ware Levitt represented Silleg. Assistant U.S. Attorneys Marcus Asner and Christine H. Chung represented the government.

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