In a recently decided 6th Circuit Court of Appeals case, Richard Bistline pled guilty to knowingly possessing child pornography on his home computer. The images and videos depicted 8-10-year-old girls being raped by adult men. Under the Sentencing Guidelines, Bistline was recommended to receive between 63 and 78 months’ imprisonment.
The district court rejected the guidline recommendation and instead sentenced Bistline to one night’s conferment in the courthouse lockup, followed by ten years’ supervised release. In their appeal, the government argued the district court improperly rejected the sentencing guidelines. The 6th Circuit ultimately agreed and vacated Bistline’s sentence. This is the first of two recent cases where the appeal of a District Court's guideline downward departure has been appealed and the government has won that issue in the sixth circuit.
In September 2007, law enforcement agents found that Bistline had uploaded hundreds of child porn images as shared files on a peer-to-peer Internet program. Bistline pled guilt to one count of possession of child pornography in violation of 18 U.S.C. § 2522. Bistline’s probation officer recommended a reduced sentence of only 24 months citing Bistline’s age (67-years-old), his lack of prior criminal convictions, his poor health and the fact that he served as a caretaker to his wife.
The district court said from the beginning that it viewed the guidelines for possession of child pornography as “seriously flawed” as a result of Congress’ involvement in them. The Court too emphasized Bistline’s age, health and caretaker status and ultimately ruled in opposition to the guidelines.
The government argued that the sentence meted out by the Court was substantively unreasonable meaning that the sentence was arbitrarily selected, based on impermissible factors and it failed to consider pertinent factors. The 6th Circuit said that even though the Sentencing Guidelines are only advisory they are still the starting point for choosing a sentence and if the district court imposes a different sentence outside the range then the court must “ensure that the justification is sufficiently compelling to support the degree of variance.”
The district court’s justifications started with the belief that the sentencing guideline was “seriously flawed” due to Congressional involvement. The 6th Circuit rejected this out of hand saying that a district court cannot reject a guideline merely because Congress exercised its prerogative in formulating the rule. The district court further sought to justify its decision by saying that the sentencing guidelines were not arrived at through empirical study and data. The 6th Circuit rejected that as well saying that Congress based its action not only on empirical but also retributive grounds.
The 6th Circuit also discussed how Bistline’s sentence was not reasonable given that it did not reflect the seriousness of the offense. The district court was slammed for excusing Bistline’s conduct and portraying him as an innocent victim of pop-ups and viruses. The 6th Circuit said instead the act was knowing and deliberate and repeated hundreds of times. A sentence of supervised release was simply not enough to reflect the seriousness of the offense.
Finally, the 6th Circuit notes that Bistline never expressed any genuine remorse for his acts, instead saying he did not understand why it was illegal to possess child pornography and expressing anger at having had his illegally downloaded music seized by federal authorities. His sentence was declared to be substantively unreasonable and his case was remanded.
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