Sixth Circuit Vacates and Remands Another Child Pornography Case

Sixth Circuit Vacates and Remands Another Child Pornography Case

Today the Sixth Circuit released USA v. Howell.  Howell pleaded guilty to transporting, receiving, and possessing child pornography in violation of 18 U.S.C. §§ 2252A(a)(1), (2) & (5). The district court (Middle District of Tennessee) sentenced Howell to 135 months’ imprisonment, seventy-five months below the bottom of the 210-262 month term recommended by the presentence investigation report. 

On appeal, Howell argues that his sentence is invalid for being unreasonably long and because the district court did not decide whether or to what extent Howell withdrew from the charged criminal activity prior to his arrest; a claimed mitigating act about which Howell testified at sentencing. Fed. R. Crim. P. 32(i)(3)(B) (requiring ruling on any controverted sentencing matter or a determination that resolving the dispute is unnecessary). The Sixth Circuit agreed that the district court did not comply with the strict requirements of the rule and therefore vacated the sentence and remanded for resentencing.

The rub of the case is that Howell claims he renunciated and withdrew from the child pornography conspiracy and therefore should receive a sentence even further below the guidelines.  The government sees it differently and offered proof that images still existed at the time of arrest on Howell's computer and that he accessed them days prior to his arrest.  Quite a different position from Howell's assertion that it had been a year or more since he accessed them.

The problem for the Sixth Circuit was that the district court never resolved, as Rule 32(i)(3)(B) requires, that issue of whether, when or to what extent Howell ceased deliberately to possess or view images of child pornography.  Nor did the district court find that it need not resolve the issue for being irrelevant to the sentence or simply because the court would not consider the argument or evidence in formulating the sentence.

So now Howell get's a second sentencing hearing where he can argue that his  under-guideline sentence is too long and prosecutors can carefully demonstrate that he accessed images within days of arrest.  

Howell is not recommended for Full-Text publication.

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