An Eighth Circuit judge has joined the group of members of the judiciary opposed to the federal child pornography guidelines. In a recent opinion before the court, Judge Bright wrote a concurrence to suggest that the sentence was "excessive." United States v. Zauner, No. 12-1007 (8th Cir. 2012).
The defendant had been charged with production of child pornography after she took sexually explicit photos of her children at the urging of a man she met online. The two met on a ridesharing website. She was sentenced to 18 years in prison and 15 years of supervised release, and restitution of $20,000 was ordered. On appeal, she argued that the sentence was substantively unreasonable, but the Eighth Circuit affirmed.
Judge Bright, concurring, noted that the court owes a substantial deference to the district court, but wrote:
In this area, the guidelines routinely place defendants near or over the statutory-maximum sentence, eliminating any meaningful distinction between the least and most culpable offenders. This case is a great example.... Yet looking at Zauner's offense conduct alone, she does not rank among the worst child pornography offenders deserving of the statutory-maximum sentence. She was a first-time offender and her conduct did not trigger several of the possible enhancements under U.S.S.G. § 2G2.1. There is also nothing in the record to indicate the pictures were distributed beyond those people directly involved in the offense conduct. On the facts of this case, I do not believe any reasonable judge would have sentenced Zauner to the recommended sentence under the guidelines. The district court apparently agreed, exercising its prerogative to depart downward to sentence Zauner to eighteen years in prison—three years above the mandatory minimum. And where the guidelines are out of line and increasingly disregarded by sentencing judges, the mere fact of a downward departure should not insulate the district court's sentence from any type of meaningful review. In addition, in cases such as this, where the guidelines obviously do not fit, a sentencing judge should give careful assessment to the sentencing requirements of § 3553(a) and state the judge's reasons and conclusions on the record.
I also write separately because I personally believe the sentence was excessive.