M - Voice For The Defense Online

july/august 2007
FR Buck Files, Jr
Unreasonable Non-Guideline Sentences
Defense lawyers and government lawyers alike are having a common experience: They are
enjoying the thrill of victory in the district courts and the agony of defeat in the appellate
courts. Why Because some United States district judges either have an unexplainable
desire to have their sentences vacated and the cases remanded for re-sentencing or they
simply do not understand Booker and the importance of 18 U.S.C. §3553. Judges of the
various courts of appeal are finding their sentences to be unreasonable.
The initial reaction of the media and of many lawyers and judges to Booker was that
the Supreme Court had returned us to the pre-Guidelines era. Judges would have
unfettered discretion to assess whatever they believed to be an appropriate sentence.
Like Texas judges, they could look at the offense and the offender and do justice. What
Booker teaches us is that a sentencing court is required to consider the Guidelines, but
is permitted to tailor the sentence in light of other statutory concerns as well. United
States v. Booker, 125 S.Ct. 738 (2005).
Judge Gottschall’s Disaster
United States District Judge Joan V. Gottschall of the Northern District of Illinois just
had one of her judgments reversed and the case remanded because of a Booker sentencing
issue. See United States v. Goldberg, ___F.3d ___, 2007 WL 1827645 (7th Cir.; 2007).
Judge Gottschall — who had been on the district bench for more that 10 years — gave the
Court no other option. She imposed a non-Guideline sentence and did not thoroughly
articulate her reasons for its imposition.
Jeremy Goldberg was an advantaged child. He had been convicted of a drug offense
and was being confined at home. While there, he downloaded file-sharing software that
gave him access to a web site called “# 100% PreTeenGirlPics.” Over a period of some 18
months, he downloaded hundreds of pornographic images, some depicting children as
young as two or three being vaginally penetrated by adult males. He offered these images
to other subscribers to the web site to induce them to send similar images in return.
:: federal
corner
Eventually, Goldberg was indicted for a violation of 18 U.S.C. §2252(a)(5)(B). This section
of the Child Pornography Prevention Act of 1996 authorized the imposition of a
maximum prison sentence of 10 years for anyone who “knowingly possesses any book,
magazine, periodical, film, videotape, computer disk, or any other material that con-
| 14