In United States v. Johnson, 446 Fed. Appx. 798 (6th Cir. 2012), the Sixth Circuit vacated and remanded the sentence of a man convicted of transportation, transfer, and possession of child pornography.
In 2001, the defendant was convicted of transmitting child pornography and using a facility in interstate commerce to attempt to persuade a minor to engage in sexual activity. As it turned out, the minor was an FBI agent. Upon release from prison and completing two years of supervised release, the defendant showed that he hadn't quite learned his lesson. He again engaged in online communications where he sent pornographic images to what he thought was a 13-year-old girl but was actually an undercover agent. He pled guilty to various charges.
At sentencing, the government argued for a five level enhancement under section 2G2.2(b)(5) for "a pattern of activity involving the sexual abuse or exploitation of a minor." The district court found arguments for and against the enhancement valid so he decided to split the difference in the number of months.
While the Sixth Circuit noted the judge's "admirable desire to achieve fairness," the sentence was arbitrary because the judge did not resolve the dispute. Finding that the compromise was not appropriate, the court noted, "Such an approach to sentencing is not the product of reason but of happenstance and, unfortunately, short-circuits every other discussion regarding the reasonableness of the sentence in this case."