Sentencing Considerations in Child Pornography Cases

United States of America v Colin J. Michael, No. 19-1885

In fashioning its sentence, the court focused on the danger that Michael posed to the community, noting his: (1) possession of a book entitled Youthful Prey: Child Predators Who Kill; (2) watching television shows involving sex crimes against children and being aroused by them; (3) lack of honesty about sexual partners; (4) fantasies about young boys and girls; (5) driving to stores that sell pornographic material but not going inside; (6) consuming alcohol to the point of intoxication; (7) accessing adult pornography; and (8) trying to access child pornography. But in concluding that Michael posed a physical danger to children, the district court relied on inferences unsupported by the record and facts that bear only on the risk that he might seek out child pornography in the future. Dr. Bascom W. Ratliff, a clinical social worker and facilitator of Michael’s extended sex offender treatment program, testified that relapses in addictive behaviors such as seeking out pornography are to be expected and can be addressed through prevention planning.

The district court, relying heavily on the mitigating fact that Michael suffers from Asperger’s syndrome, imposed a 5-year probationary sentence. On Michael’s first appeal, we concluded that the district court procedurally erred and remanded the case for resentencing. The district court also subsequently re-opened the record to add that it did not “believe the federal penal system at this time is in a position to properly house . . .defendants like this who have Asperger’s syndrome and have a limited mental capacity.” We also concluded the sentence was substantively unreasonable based on the record before us at that time, which did not indicate the district court was aware of Michael’s Asperger’s syndrome. In fashioning its sentence, the court focused on the danger that Michael posed to the community, noting his: (1) possession of a book entitled Youthful Prey: Child Predators Who Kill; (2) watching television shows involving sex crimes against children and being aroused by them; (3) lack of honesty about sexual partners; (4) fantasies about young boys and girls; (5) driving to stores that sell pornographic material but not going inside; (6) consuming alcohol to the point of intoxication; (7) accessing adult pornography; and (8) trying to access child pornography. In support of his claim that the sentence is substantively unreasonable, Michael notes that the applicable revocation Guidelines range was 3 to 9 months’ imprisonment. In cases of supervised release violations,defendants have already served a term of incarceration on their underlying crime of conviction. A defendant ought not be placed in a better position to challenge the reasonableness of a Guidelines sentence for a crime of conviction after violating probation than he is before breaching the court’s trust. 

Here, the district court, aware of Michael’s Asperger’s diagnosis and its tendency to impair individuals’ insight and cause fixation problems, decided to give greater weight to the risk to the public arising from Michael’s fascination with violence against children and his persistent attraction to child pornography. It is important to not give too much weight to Michael’s lack of success in finding child pornography with searches on YouTube. 

Nearly three years ago, we remanded this case for resentencing based on both procedural error and substantive unreasonableness. We did so because it was unclear from the record whether the district court considered Michael’s diagnosis of Asperger’s syndrome,and it appeared that the 96-month sentence may have been based on facts not in the record.

The sentencing court must also weigh the § 3553(a) factors and “make an individualized assessment based on the facts presented.” Id. at 49–50. But in concluding that Michael posed a physical danger to children, the district court relied on inferences unsupported by the record and facts that bear only on the risk that he might seek out child pornography in the future. 

On remand, the parties relied on the entire record in support of their respective positions—including the evidence submitted for the previous two sentencing hearings. This included the testimony of Dr. Steven Peterson, a forensic psychiatrist who evaluated Michael and testified at his original sentencing in November 2016. Dr. Peterson explained that “a young person with the social delays typically associated with Asperger’s syndrome is at increased risk for obsessive preoccupation with things on the Internet,” including child pornography. Dr. Bascom W. Ratliff, a clinical social worker and facilitator of Michael’s extended sex offender treatment program, testified that relapses in addictive behaviors such as seeking out pornography are to be expected and can be addressed through prevention planning. Moreover, Dr. Peterson explained that Michael’s “preoccupation” with certain hobbies, such as watching “multiple law-enforcement themed television shows,” was a symptom of his Asperger’s syndrome. And the government does not dispute Dr. Peterson’s testimony that Asperger’s syndrome does not “in and of itself” increase the risk of committing a sexual contact offense  against a child. There is nothing in the record to explain how Michael’s interest in a non-pornographic television show creates or increases the risk that he would actually assault a  child. Nor does the Youthful Prey book that Michael bought shortly before his original sentencing hearing in November 2016 bear the weight that the district court placed on it. 

The district court also relied on Michael’s recent history of suicidal ideation and his heightened level of anxiety to conclude he posed a grave risk of danger to the public. As to his suicidal ideation in particular, the record indicates that it was “mild” and that it materialized after his misconduct was discovered, stemming from his distress regarding possible imprisonment and his fear that he would not be able to overcome his pornography addiction. No evidence suggests that the conduct underlying Michael’s offense and probation violations was ever preceded by or correlated with suicidal or despairing thoughts. The district court cited this fact as evidence that Michael “remain[ed] in a sexually deviant cycle as a result of his continued use of pornography,” and expressed concern that his behavior was “escalating.”  On remand, Michael cited a study demonstrating that only a small percentage of child pornography offenders like himself are arrested or convicted of a sexual contact offense. I respect the district court’s “superior position” when it comes to making the difficult, yet extremely important, decision of what sentence to impose in an individual defendant’s case.