United States v. Stefan Goff: Another sentence vacated and remanded because it was too light!

In United States v. Stefan Goff, Goff's sentence was vacated and remanded because Goff only received a sentence of 4 months imprisonment, 3 years of supervised release, and a $10,000 fine for possessing hundreds of images of child pornography which were purchased online.

This is the way the sentencing guidelines should have worked:

1. No previous criminal record set the set the "Criminal History" axis as Category 1.

2. The base offense level was 15.

3. The offense level was increased by 2 levels because the porn images involved prepubescent minors or minors who had not reached the age of 12. This makes the offense level 17.

4. The offense level was increased by another 2 levels because the offense involved the use of a computer. The offense level is now 19.

5. The presentence officer recommended another 5-level increase because the offense involved 600 or more images. The offense level is now 24.

6. The lower court credited Goff with a 3-level reduction because he accepted responsibility, putting the final offense level at 21.

For a level 21 offense, the applicable Guidelines range is 37-46 months.

The Government argued that the sentence should be no lower than that warranted by offense level 16, which removes the 5-level enhancement for over 600 images, as many of them were duplicates and Goff possessed only 360 different images. The Third Circuit Court noted, however, that this would result in a 4-level enhancement, bringing the offense level back up to 20, which has a sentencing range of 33-41 months.

The Court decided that 4 months, instead of 33-41 months, was "unreasonable . . . because the circumstances do not warrant such a downward variance."

The issue with the lower Court seemed to be Goff's exemplary life and service to the Community, along with his claim that the crime was a victimless crime which he committed alone and involved no one else.

But Goff's crime is not victimless. Goff's purchase of those porn images supports a growing menace to our society. He aided and abetted the subjection of children to this evil practice.

I am glad the Third Circuit vacated and remanded this sentence. 33-41 months is a just and reasonable sentence for purchasing and possessing 360 images of child porn that involves children under the age of 12.

Stokes v. Gann: Entrapment -- Does it violate Constitutional Rights?

How far can a law enforcement agency go in its sting operations to catch crime in action?

According to the Courts:

• they can target a specific individual
• they can repeatedly contact the target individual by phone
• they can approach the target individual at work
• they can pressure the target individual to commit the crime
• they can provide the transportation and items needed to commit the crime

The lower courts agreed this is entrapment, but refused to acknowledge it as a violation of Constitutional rights violation. The Fifth Circuit Court of Appeals agreed that it is not a Constitutional Rights violation because the agent's conduct was not "so brutal and so offensive to human dignity that it shocks the conscience." The Court's Opinion cited a laundry list of court cases that give precedent to this standard.

What was the crime?

The Mississippi Department of Wildlife, Fisheries, and Parks received reports that a co-worker of Steven Stokes was hunting deer illegally and launched an undercover sting operation against Stokes (we assume they also launched one against the co-worker, but that is not mentioned in the Opinion). Stokes finally committed the crime of hunting deer at night using a spotlight, which is called "headlighting deer." The agent provided the transportation, the gun, and the spotlight.

In Mississippi, entrapment is an affirmative defense unless the defendant "already possessed the criminal intent and the request or inducement merely gave the defendant the opportunity to commit what he or she was already predisposed to do," and the charges were dropped against Stokes.

Maybe this level of entrapment isn't a violation of Constitutional rights, but it certainly is ill-advised and all persons responsible for coming up with this scheme should be looking for another job -- NOT in law enforcement.

Read the opinion . . .

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Sentencing -- What is Just?

3 recent decisions from the 8th Circuit Court of Appeals have reversed and remanded sentences because they were too light and disregarded the Setencing Guidelines:

US v. Coughlin, No. 06-3294
A successful and prominent Wal-Mart executive's no-imprisonment sentence for aiding and abetting wire fraud and filing false tax returns is reversed and remanded where: 1) the district court clearly erred in finding defendant suffers an extraordinary physical impairment and abused its discretion by departing downward eight levels pursuant to U.S.S.G. section 5H1.4; and 2) in imposing an alternative non-Guidelines sentence, the lower court did not state the reasons for the sentence with sufficient specificity and relied on ordinarily irrelevant, and discouraged, grounds in reaching the sentence. Read more...

US v. Hatcher, No. 06-2814, 06-3099, 06-2819, 06-3098
Defendants' sentences for a series of armed robberies are vacated and remanded pursuant to the government's challenge where the sentences were unreasonable since the district court gave significant weight to an improper factor, the severity of consecutive sentences imposed pursuant to 18 U.S.C. section 924(c). Read more...

US v. Bradford, No. 06-3018
A sentence for being a felon in possession of a firearm and possession with intent to distribute marijuana is vacated and remanded for resentencing where: 1) the Guidelines expressly limit the extent of a departure to a single criminal history level when the district court determines that the offender's criminal history score is overstated; and 2) thus, the district court erred when it departed by five levels as none of the other factors it cited justified the extent of the departure at hand. Read more...

I applaud the 8th Circuit Court's insistence that the Sentencing Guidelines be correctly applied. Too many criminals are doing too little time in prison because of plea bargains and Judges who don't have the gumption to deal just sentences.

In the current Michael Vick case, rumors are that the Judge who will sentence Vick has already told Vick that he is not obligated to accept Vick's plea deal. He is expected by the commentators to give Vick closer to the maximum sentence, if not the maximum.

Yes, Vick appears to be genuinely sorry. But that's not extraordinary -- he should be sorry. He should be very sorry. He let a lot of people down. He engaged in a particularly revolting crime -- dog fighting. When caught, he initially lied. Yes, he has a great deal to be sorry about.

Yes, he appears to be cooperating with law enforcement to help close down other dog fighting rings. But that's not extraordinary -- he should share what he knows as part of his debt to society.

Too many criminals are not getting any prison time at all because of plea deals, and too many other criminals are not getting the sentences their crimes warrant.

NOTE: You have to subscribe to Find Law to read their briefs, but subscription is free.

Trashing the Truth

In July of this year, the Denver Post ran a series of articles on how the evidence that can convict the guilty and free the innocent is routinely destroyed by police departments. It is well worth the time to read.

State Appeals Court Grants Archie Williams DNA Testing To Prove His Innocence – 11 Years after He First Asked a Court for Testing

Excerpts from The Innocence Project

(BATON ROUGE, LA; August 22, 2007) – A state appeals court in Baton Rouge ruled this week that Archie Williams has a legal right to DNA testing that could prove his innocence in a rape and attempted murder for which he was convicted in 1983. The ruling comes nearly a quarter-century after Williams was convicted – and 11 years after attorneys for Williams filed the first legal motion seeking DNA testing in the case.

"In many of the 206 cases nationwide where DNA has exonerated wrongfully convicted people, it took years to secure DNA testing, but we have never seen a case as egregious as this one. This is precisely the kind of case where DNA can prove guilt or innocence irrefutably and quickly, but it has taken well over a decade just to secure a court order to have DNA testing conducted,” said Barry Scheck, Co-Director of the Innocence Project, which is affiliated with Cardozo Law School. “It is truly incomprehensible and simply unconscionable that it has taken so long to secure testing in this case."

"Again and again in Louisiana and around the country, we have shown that DNA can exonerate the innocent while also helping identify and apprehend the guilty. In the interests of justice, public safety and confidence in the criminal justice system, the Baton Rouge District Attorney’s office should let this court ruling stand and start working to get the DNA testing done,” Scheck said. “Nobody – not Archie Williams and his family, nor the victim and her family and not the community at large – is served by continuing the unprecedented obstacles to DNA testing in this case."

A Snapshot of exonerations

We have a new link on the "Links to Other Sites." At this site, provided by The Innocence Project, you can view Exonerations by State, Causes of Wrongful Convictions by State, or Reform.

When you click on any of the 3 categories, you will first see a map of all states, and then can select a State for specific information.

The Innocence Project has much valuable information on its site, but this snapshot is a very good way to become knowledgeable about wrongful convictions.