In Unpublished Opinion, Second Circuit Remands Within-Guidelines Sentence Due to Lack of Explanation for Rejecting Defendant's Non-Frivolous Arguments For Leniency

The (unfortunately unpublished) decision of United States v. Baker, 2007 WL 4006103 (2d Cir. November 16, 2007) is a significant sentencing holding for child pornography cases as well as more generally for cases where the district court is too wedded to the applicable guideline range.  Baker received a bottom-of-the-Guidelines-range sentence for transportation of child pornography (108 months).  He challenged it on appeal on the grounds that it was "too long" and the sentencing court failed to give proper consideration to the 18 USC §3553 factors.

Reiterating a previous holding that a within-Guidelines sentence does not relieve the district court of its obligation to provide a rationale for the sentence, the Court pointed out that in Baker, the district court "did not articulate why a Guidelines sentence was appropriate. More specifically, the district court did not articulate why Baker's conduct merited nine years' imprisonment - as opposed to the statutory minimum sentence of five years - beyond the mere fact that nine years' imprisonment is within the Guidelines."

The Court highlighted two non-frivolous arguments made on the defendant's behalf for a below-Guidelines sentence: (a) the defendant's sentence compared unfavorably to the sentences imposed on those who committed similar acts, and (b) an argument that struck a chord with the Court: that the defendant's offense fell outside the heartland of child pornography offenses targeted by the Guidelines because there was no evidence that the defendant had personally engaged in any act of sexual victimization of children.  In light of these arguments, the Court held that "at the very least, the district court needed to articulate why it did not consider or choose a non-Guidelines sentence."  The Court thus remanded for resentencing. 

The last footnote in the decision is worth quoting in full: "The district court took more care to articulate its reasons for sentencing Baker to the low end of the Guidelines range, citing his strong family ties, the embarrassment the ordeal caused his family and the lack of evidence of sexual abuse. If anything, the district court's recitation of reasons it sentenced Baker at the low end of the Guidelines range begged for more explanation of why Baker did not receive a below-Guidelines sentence."