Friday, April 17, 2009
Ind. Decisions - 7th Circuit issues one Indiana case today, re child pornography
In U.S. v. Larry Smith (ND Ind., Judge Lorenzo), a 32-page, 2-1 opinion, Judge Manion writes for the majority:
Larry G. Smith pleaded guilty to one count of distributing child pornography in violation of 18 U.S.C. § 2252(a)(2) after law enforcement officers discovered more than 3,000 images of child pornography on Smith’s computer hard drives, which had been set up to share the images over the internet. The district court sentenced Smith to 240 months’ imprisonment. Smith appeals his sentence. We affirm. * * *
[Judge Rovner's dissent begins on p. 21 of 32] There is no doubt that Larry G. Smith committed a heinous crime when he decided to collect and trade child pornography. There is no doubt that the images contained on his computer were of the most horrific kind. There is no doubt that he is a very disturbed young man. Unfortunately, there is also no doubt that the district judge seriously misstated the law regarding the role of the Bureau of Prisons (“BOP”) in determining release dates for federal prisoners. The majority seems to agree that the district court’s “under- standing” that the BOP had unfettered discretion to release prisoners early if BOP experts determined that the prisoner was cured is “incorrect.” Supra at 16. The majority finds that Smith has failed to demonstrate that the district court relied on this misunderstanding of the law in determining his sentence. I find it incomprehensible that such a misunderstanding could not influence a judge’s sentencing decision. The original exchange, which came after defense counsel stated he would like to address the defense expert’s testimony, is worth repeating in its entirety: [ILB - see p. 22-25 of the opinion] * * *
[E]ven defendants who commit the most abhorrent crimes deserve a sentencing decision that is not influenced by legal errors if we are to maintain the rule of law. In light of the district court’s legal error, which went uncorrected by the court for the remainder of the sentencing hearing, I believe we should vacate the sentence and remand for a new sentencing. Therefore, I respectfully dissent.
Posted by Marcia Oddi on April 17, 2009 12:48 PM
Posted to Ind. (7th Cir.) Decisions