Child Pornography Sentencing in the Sixth Circuit

Abstract

This Symposium Essay explores and analyzes the Sixth Circuit’s approach to child pornography sentencing. It critiques the Sixth Circuit’s decision to apply heightened scrutiny to below-Guideline sentences for child pornography possession. In addition to presenting a critique of the Sixth Circuit’s cases, the Essay also provides guidance for defense attorneys seeking a below-Guidelines sentence. It notes that there are particular strategies those attorneys should follow in order to secure not only a more lenient sentence from a district court judge, but also a sentence that is more likely to be upheld by the Sixth Circuit on appeal.

During the course of this discussion, the Essay identifies and criticizes three significant features of the Sixth Circuit’s cases in this area. First, it notes that the Sixth Circuit is the only circuit to have adopted heightened appellate review of below-Guideline sentences for child pornography possession. Second, it explains that the Sixth Circuit appears to be developing a common law of sentencing in child pornography cases; such a common law is contrary to the language and the logic of the Supreme Court’s Sixth Amendment sentencing cases. Finally, it explains that the Sixth circuit has failed to give appropriate deference to district court decisions to sentence below the Guidelines based on facts and circumstances of particular cases.

Keywords: child pornography, sentencing, Sixth Amendment, Sixth Circuit, appellate review