The Seventh Circuit Considers Sentencing Guidelines for Child Pornography Charges

By Reddin & Singer

Balance

When individuals are charged with federal crimes in federal court, punishment occurs in two phases. First, the criminal defendant must be found guilty of the crime of which he or she is charged. Second, based on the nature of the crime the defendant is found guilty of committing, and any other aggravating circumstances (such as the use of a violent weapon), a defendant is then sentenced to a certain punishment, with the court giving due consideration to the United States Sentencing Guidelines. While judges have discretion to vary the sentencing ranges and punishments based on the circumstances of the case, they must consider the sentencing guideline range as calculated by the USSG. A recent case in the United States Court of Appeals for the Seventh Circuit, the federal appeals court with jurisdiction over Wisconsin’s district courts, addressed which sentencing guidelines should apply when the guidelines have changed during the period since the crime was committed.

In Conrad v. United States, David Conrad was convicted of multiple violations of federal law related to the use and distribution of child pornography. At the time he was convicted, the USSG provided for a sentence of 360 months to life in prison. Conrad was ultimately sentenced to 196 months in jail by the judge. Despite the lesser sentence, Conrad appealed, arguing that at the time of his conviction, the sentencing guidelines range for his crimes was 121 to 151 months in jail, and this is the guideline that should have applied in his case.

In so arguing, Conrad relied on a recent decision by the United States Supreme Court, Peugh v. United States. In Peugh, the Supreme Court held that when a defendant is sentenced under sentencing guidelines promulgated after the defendant has committed a crime, such a sentence violates the ex post facto clause of the United States Constitution. Under Peugh, the correct sentencing guidelines to consider are those in effect at the time the crime is committed. However, Peugh was decided after Conrad was convicted and sentenced, and thus the issue of Peugh was first raised in Conrad’s appellate briefing. Accordingly, here, the Seventh Circuit had to decide whether Peugh should apply retroactively to reduce Conrad’s child pornography sentence.

In Peugh, the Supreme Court did not say explicitly whether its decision in the case should be applied retroactively. Accordingly, the Seventh Circuit had to weigh Conrad’s right to a fair and constitutional sentence against the judicial interest in the efficient resolution of cases. As with any issue of retroactivity, imposing Peugh on cases decided before it was handed down had the potential to result in a significant number of post-conviction appeals. For this reason, the Seventh Circuit ultimately decided that Peugh did not apply retroactively, and Conrad’s sentence of 196 months for child pornography could stand.

If you are facing possible federal criminal charges for child pornography violations, it is important that you speak with a qualified criminal defense attorney to discuss possible sentences and sentencing guidelines applicable to your case. If you need to speak with an experienced sex crimes attorney in Milwaukee, do not hesitate to contact the law offices of Reddin & Singer, LLP online or give us a call at (414) 271-6400.