Fourth Circuit Update: United States v. Alan Williams

On July 20, 2021, the U.S. Court of Appeals for the Fourth Circuit decided Appeal Number 20-4120, United States v. Alan Williams. Judge Rushing wrote for the Court. Judges Agee and Harris joined the opinion. In itself, the Court’s decision is not particularly interesting. Rather, what we find remarkable about it is how it illustrates the contrast between how courts sentence defendants for child pornography offenses, based on whether or not specific sentencing Guidelines are at issue.

The Case Itself

Alan Williams became close to a family of five. He would take two of the children on vacations. What the family didn’t know was that, on one of these trips, Mr. Williams had secretly taken pictures of the eldest daughter (then 14) and shared them on the internet. When she was 16, he repeated the practice, and also photographed himself sexually abusing her. When police officers searched his electronic devices, they found many child pornographic images, as well as a photo of an 11 year old girl that he had secretly taken and shared.

Mr. Williams pled guilty to one count of producing child pornography. The U.S. Sentencing Guidelines gave an offense level of 37, one level below that for second-degree murder, resulting in a recommended range of 210 to 262 months’ imprisonment. Citing the nature of the crime, as well as Mr. Williams’ abuse of trust and the harm he had caused to his victim, the district court sentenced him to a higher sentence of 327 months’ imprisonment (just over 27 years).

Mr. Williams raised several arguments on appeal. First, he argued that the district court had not given him the required notice before increasing his sentence above the Guidelines range. The Court of Appeals held that Mr. Williams had not received an upwards departure (an increase for reasons recognized by the Guidelines) but an upwards variance (an increase for reasons outside the Guidelines), so no notice was required. Mr. Williams then argued that the district court should not have relied on his victim’s mental health because he had not been able to access her records, but the Court responded that he hadn’t requested them — a reminder to all counsel that our work is not done until the client is sentenced. The defendant argued that the district court had not made an individualized assessment of his sentence; the Court disagreed. Finally, the Court found the sentence imposed to be reasonable.

What is Significant About This?

Nothing is inherently significant about this case. It is common for defendants convicted of producing child pornography, like Mr. Williams, to receive a sentence within the Guidelines range. Sentences above the Guidelines range, although rare, are not exceptional. U.S. Sentencing Commission, Federal Child Pornography Offenses [“Report to Congress”] at 253-257 (2012).

This lack of significance is remarkable, however, by contrast to other child pornography offenses. Severe as those crimes are, the Guidelines ranges are even more so. Similar objections to those Guidelines can, in some cases, be applied in production cases. U.S. v. Price, 775 F.3d 828, 840-41 (6th Cir. 2014)).  The result is that whether a Guidelines range is considered inadequate or excessive depends largely on the factors considered by those Guidelines.

What’s Special About the Child Pornography Guidelines?

The history of the Child Pornography Guidelines is unusual.  Unlike most Guidelines ranges, which are set by the U.S. Sentencing Commission, the Guidelines for pornography were set directly by Congress.  Unfortunately, those Guidelines “were promulgated when the typical offender obtained child pornography in printed form in the mail.”  Report to Congress at iii.

Two things have changed since then.  First, as computers have become more prevalent, conduct that was rare at the time has become commonplace. Second, the Department of Justice prosecutes far more child pornography offenders than it did when the Guidelines were promulgated. The result is that ordinary possessors of child pornography receive Guidelines ranges that were intended for the worst offenders. In most cases, even a first-time criminal will receive a range close to the maximum sentence.

This outcome has been widely criticized. According to a 2012 Report by the Sentencing Commission, not only the defense bar believed that the Guidelines should be revised, but also the American Bar Association and even the Department of Justice. Report to Congress at 10. The Sentencing Commission itself reached the same conclusion. Report to Congress at 15. Most relevant here, however, is that this opinion is shared by many federal judges. The Sentencing Commission believed that it was held by “an apparent majority of the federal judiciary.” Report to Congress at 10. One court, citing research by the Sentencing Commission, estimate the 70% of judges thought the penalties too harsh. United States v. Marshall, 870 F. Supp. 2d 489, 490 (N. D. Ohio 2012).

Many courts simply find that “the sentencing guidelines at issue are . . . harsher than necessary.” U.S. v. Stone, 575 F.3d 83, 97 (1st Cir. 2009). Some particularly object to a Guidelines range that is higher than the range for even more serious crimes, including physical sex offenses against children. E.g. U.S. v. Dorvee, 616 F.3d 174, 184, 187 (2d Cir. 2010); U.S. v. Cruikshank, 667 F. Supp. 2d 697, 702 (S.D.W.Va. 2009). Others disapprove of the Guidelines’ failure to distinguish between more and less culpable offenders. E.g. U.S. v. Diaz, 720 F. Supp. 2d 1039, 1042 (E.D. Wis. 2010); U.S. v. Coffey, 2016 WL 6780306, at *1 (E.D. Va. 2016).  (Conversely, the Guidelines often provide different sentences for two offenders who committed similar misdeeds. Report to Congress at 213-219.) Most courts raise more than one of these issues.

Regardless of the details, “Judges and commentators have challenged the inequities of the child pornography Guidelines.” Cruikshank, 667 F. Supp. 2d at 702.

How Does This Disapproval Affect Sentencing?

Judges do not limit themselves to criticizing the Guidelines in the abstract.  “Recognizing the flaws in this guideline, judges across the country have declined to impose sentence within the range it recommends.” Diaz, 720 F. Supp. 2d at 1041.

Judges are not required, or even permitted, to assume that the Guidelines range is reasonable.  U.S. v. Raby, 575 F.3d 376, 380-82 (4th Cir. 2009).  Even so, courts begin by calculating the Guidelines range and typically show some deference to that range.  Judges rarely grant the child pornography range this deference.  Some reject the Guidelines entirely, although in a few circuits a judge is not allowed to do so. (The Court of Appeals for the Fourth Circuit has not ruled on this issue.)

In fiscal year 2011, fewer than one in three defendants received a sentence within the Guidelines range.  Report to Congress at 7.  By fiscal year 2019, the number had fallen even further, to 30 percent.  U.S. Sentencing Commission, Federal Sentencing of Child Pornography [“2021 Report”] at 23 (2021).  These low rates are not the result of the government: in fiscal year 2019, downwards departures were sponsored roughly equally by the government (3.6 percent) or the court (3.1 percent), but downwards variances were granted without government sponsorship more than twice as often (42.2 percent) as with government sponsorship (16.8 percent).  2021 Report at 24.

The Sentencing Commission has proposed factors that courts should consider, which are broadly consistent with the way courts rule, but “in the absence of a guideline that accounts for these factors, courts cannot consider these key factors in a uniform manner.” 2021 Report at 53. The result is significant disparity in sentences, even within a given Circuit. 2021 Report at 54-59. For example, the average sentence in fiscal year 2020 was significantly higher in the District of Maryland than in the Eastern District of Virginia. These disparities are exacerbated by prosecutors’ discretion to charge similar defendants differently. 2021 Report at 49-52, 219-225.

In short, the average sentence for non-production child pornography offenses “in this District[,] Circuit, and throughout the United States, is far below the bottom of the Guidelines–recommended sentence.” Coffey, 2016 WL 6780306, at *3.  Below Guidelines sentences are becoming much more common in production cases, as well, but this trend is not as well established.

By Jonathan Knowles

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