Written by Buck Files
Only one criminal defense lawyer in America has ever before seen the fact situation that was presented to the United States Court of Appeals for the Sixth Circuit. United States v. Collins, ___F.3d___, 2016 WL 3583999 (6th Cir. 2016) [Panel: Circuit Judges Guy, Batchelder and Cook. Opinion by Judge Guy.] That lawyer was the attorney of record for Mr. Collins.
• The offenses: 18 USC §§ 2252(b)(1) and 2252A(b)(1) [Distributing child pornography and possessing child pornography]
• The jury’s verdicts: Guilty on each count
• The statutory maximum punishment: 20 years
• The advisory Sentencing Guidelines range: 262 – 327 months
• The sentence imposed: Two concurrent five year sentences
• The appellate court’s decision: Affirmed
The Court held, as a matter of first impression in the Circuit, that United States District Judge James S. Gwin’s consideration of a jury sentencing poll was a permissible part of determining the sentence to be imposed.
So, after years of reading opinions of the various United States Courts of Appeal holding that the decision of a district court to grant a departure or a variance from the advisory Sentencing Guidelines range was substantively unreasonable, how did three judges of the Sixth Circuit come to the decision that Collins’ sentence should be affirmed?
[Judge Gwin Polled the Jurors]
Yes, he really did! None of us have ever seen this before. Here, Judge Guy describes Judge Gwin’s polling:
At sentencing, Judge James S. Gwin revealed that, after the verdict, he ‘polled the jury to ask them … “State what you believe an appropriate sentence is.”’ Jurors’ responses ranged from zero to 60 months’ incarceration, with a mean of 14.5 months and median of 8 months. With one exception, every juror recommended a sentence less than half of the five-year mandatory minimum accompanying defendant’s offenses. See 18 U.S.C. §§ 2252(b)(1), 2252A(b)(1). Each juror’s recommendation was but a fraction of defendant’s calculated guidelines range.
[The Government’s Failure to Preserve Error]
Judge Guy notes:
Over the government’s objection, the district judge considered the jury poll as ‘one factor’ in fashioning defendant’s sentence, noting that it ‘reflect [s] … how off the mark the Federal Sentencing Guidelines are.’
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Continue reading The Most Unbelievable Sentence Ever Imposed in a Child Pornography Case