In United States v. Brown, No. 13-1706, the Second Circuit (Pooler, Sack, and Droney), withdrew the Court’s June 14, 2016 opinion, vacating Nathan Brown’s sixty year prison sentence on three counts of production of child pornography, in violation of 18 U.S.C. § 2251(a); and two counts of possession of child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B).  On December 6, 2016, the divided panel issued a new opinion affirming the district court’s sentence.

In the prior June 14, 2016, opinion, United States v. Brown, 826 F.3d 51 (2d Cir. 2016),  the panel had vacated the district court’s sentence of sixty years imprisonment on the basis that it was unclear from the record whether the district court imposed the sentence based on an erroneous understanding of the facts of the crimes.  The record showed that Brown had sexually abused three victims, two of whom were awake during the abuse and one of whom was asleep and therefore unaware of the abuse.  The district court, however, imposed the same sentence for each of the production counts (one per victim) without explaining why the harm to the victim that was unaware of the abuse warranted the same sentence as applied with respect to the victims who were aware of it.  The panel remanded for re-sentencing in light of the possibility that the district court misunderstood the facts when it imposed the sentence.

On July 11, 2016, the Court vacated its June 14, 2016, opinion and judgment sua sponte.  The Court did not explain its reasons for vacating the prior opinion.  The Government had filed a motion to extend its time to petition the Court for a re-hearing, but the Court vacated its order before the Government filed the contemplated petition.   

On December 6, 2016, a divided panel of the Court issued an opinion affirming the 60 year sentence.  Judge Droney wrote the majority opinion, Judge Sack concurred in a separate opinion, and Judge Pooler dissented.[1]

In his majority opinion, Judge Droney first rejected Brown’s procedural arguments.  Judge Droney found that the district court had properly applied the grouping and stacking provisions of the Sentencing Guidelines.  He noted that the production of child pornography counts were properly not grouped together because the guidelines prohibit grouping of child pornography production counts.  He also found that the stacking provision of the guidelines was properly applied by the district court; the district court correctly imposed the concurrent and consecutive sentences necessary to reach the Guidelines range.  Judge Droney then rejected Brown’s argument that the district court erred in imposing an enhancement for sadistic or masochistic conduct.  He found that any such error would have been harmless because Brown’s guidelines range would have been identical even absent the enhancement. 

Judge Droney next rejected Brown’s argument that the sixty-year sentence was substantively unreasonable.  He reasoned that the sentence imposed by the district court was below the upper limit of the guidelines range and was therefore reasonable even though, as Brown argued, more serious crimes such as intentional murder have been punished less severely.  Judge Droney distinguished the facts of this case from those in United States v. Dorvee, 616 F.3d 174 (2d Cir. 2010), in which the Court held a 240 months sentence for distribution of child pornography to be substantively unreasonable.  Judge Droney noted that Brown engaged in production, and not just distribution, of child pornography, and that the Court has recognized a distinction between production and possession of child pornography for sentencing purposes.  Finally, he rejected the argument that Brown’s culpability was lessened by the fact that his victims were sometimes asleep at the time of the abuse.  Judge Droney reasoned that the fact they were sometimes asleep “does not mean that [they] will never learn of [the abuse]”

Judge Sack, in a fascinating opinion based on his strong belief that emotion should play a diminished role in the task of imposing sentences, wrote separately to concur in the result reached by Judge Droney.  In his concurrence, Judge Sack wrote that when the court reviews a case involving child pornography or child molestation “we are confronted with behavior that generates an especially strong, visceral revulsion in most, or perhaps all of us.”  As a result, Judge Sack reasoned that it “requires special care to guard our own objectivity and to ensure that the sentencing judge has done the same.”  Judge Sack wrote that the district court’s emotions should be “as far removed from sentencing decisions as can practically be achieved.”  Addressing the statements made by the district court at Brown’s sentencing, Judge Sack identified “disturbing” “rhetorical excess[es],” including the district court’s statements that Brown was “the worst kind of dangerous sex offender” and that he “destroyed the lives of three specific children.”  Judge Sack concluded, however, that despite the rhetorical excesses, the district court’s sentence was both procedurally and substantively reasonable and that remand for re-sentencing was not required.  It was evidently Judge Sack’s switch that led the Court to affirm, rather than reverse, the sentence, as Judge Droney dissented from Judge Pooler’s original majority opinion.

The issue of the role of emotion in child pornography sentencing is one of concern for Judge Sack.  In United States v. Reingold, 731 F.3d 204 (2d Cir. 2013), he concurred in a decision reversing the district court’s determination that a statutory minimum sentence for the distribution of child pornography was cruel and unusual punishment prohibited by the Eighth Amendment to the U.S. Constitution.  In that concurrence, Judge Sack expressed concern about the extent to which the courts enumerated the details of the defendants’ conduct, therefore allowing “our most powerful taboos” and “emotional, moral, and cultural reactions” to inhibit the rational application of legal judgment in imposing a sentence.

Judge Pooler—the author of the since-withdrawn opinion that would have reversed—dissented from Judge Droney’s opinion.  In a thoughtful opinion, she wrote that she would have vacated Brown’s 60-year sentence as substantively unreasonable.  Judge Pooler noted that Brown, a first-time 32 year old offender at the time of his offense, will die in prison and would not have received a harsher sentence had he murdered his victims.  She also highlighted the discrepancy between the maximum 21-year sentence that Brown could have received had he been sentenced under New York law and the sixty-year sentence that he received under federal law. 

Judge Pooler then criticized the sentencing enhancements that are applied in child pornography cases as routinely “catapult[ing]” run-of-the-mill cases to the statutory sentence maximums for conduct that is often inherent in the underlying crimes themselves.  Judge Pooler noted that Brown’s guidelines range before the enhancements were applied would have been between 14 to 18 years.  The application of the enhancements raised the guidelines range to the statutory maximum on all counts: 110 years in total.  Judge Pooler wrote that the conduct underlying the enhancements could not justify that degree of an upward departure.  She argued, for example, that the “vulnerable victim” and the “custody, care, or supervisory control” enhancements reference conduct applicable in many child pornography cases and do not justify the additional years of imprisonment imposed.

Judge Pooler also criticized the rhetorical excesses of the district court.  She also attacked the fact that the court imposed the same sentence on Brown for abuse of a sleeping and unaware victim as with respect to Brown’s abuse of victims who were aware of the abuse.  

Finally, Judge Pooler ended her dissent by tying Brown’s 60 year sentence to the nationwide problem of mass incarceration.  Noting that “commuting the sentences of nonviolent drug offenders will only go so far,” Judge Pooler wrote that in order to truly confront the problem, “we must take a hard look at how we punish defendants like Nathan Brown.”

The Court’s withdrawal of its previous opinion, and the separate concurring and dissenting opinions in Brown, underscore the difficulty that it is having in identifying the appropriate punishment for those who produce, distribute, or possess child pornography.  With the increased saliency of the problem of mass-incarceration in the public policy arena, some members of the Court are scrutinizing the role that emotion and cultural norms play in calculating child pornography sentences.  There are also evident divisions among the judges on the court about how to review and when to reverse lengthy sentences in a child pornography case.  It remains to be seen whether decisions like Brown and Reingold portend a shift in how Second Circuit courts sentence these types of offenders—and particularly whether courts adjust the application of the sentencing enhancements that Judge Pooler criticized as punishing the same conduct multiple times and resulting in an unduly harsh result.