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Court Remands Guidelines Sentence for Child Pornography Offenses Without Finding Procedural or Substantive Unreasonableness

In a summary order issued on July 11, 2017, United States v. Burghardt, No. 16-949(L) (Katzmann, Pooler, Lynch), the Second Circuit remanded a 322-month Guidelines sentence for distribution and receipt of child pornography for “further consideration” by the district court.  The Court found the sentence to be procedurally reasonable and also found it was not substantively unreasonable, but nonetheless remanded the case for further consideration, continuing the recent trend of reversals in the sentencing of child pornography cases.

Burghardt had been sentenced to a term of 262 months’ imprisonment on the underlying indictment, plus 60 months’ imprisonment—to run consecutively—for having violated the terms of his supervised release arising out of a prior child pornography offense.  Burghardt was subject to several sentencing enhancements (including enhancements that apply to child pornography offenders generally, an enhancement for his prior conviction, and a final enhancement for having committed the offense while on supervised release), which increased the Guidelines range from 41-51 months to 262-327 months. 

Although the Court declined to find the sentence either procedurally or substantively unreasonable, it expressed concern that the “cumulative effect of overlapping enhancements” might render Burghardt’s sentence excessive.  The Court therefore remanded the sentence to “give the district court an opportunity to consider whether the cumulative effect of those enhancements, in relation to the . . . base offense level, should result in a non-Guidelines sentence.”

As it has in the past, see, e.g., United States v. Jenkins, 854 F.3d 181, 188 (2d Cir. 2017), the Court sharply criticized the “serious[ly] flaw[ed]” Guidelines enhancements for child pornography offenses, noting that “unless applied with great care” they may lead to unreasonable sentences inconsistent with the purposes of sentencing set forth in 18 U.S.C.  § 3553(a). While the Court did not go so far as to conclude that Burghardt’s sentence was substantively unreasonable—as it has in other recent appeals relating to child pornography offenses, see, e.g., Jenkins, No. 14-4295, and United States v. Sawyer, No. 15-2276 (2016)—the Circuit is continuing to send a message to district courts that, given the unique attributes of and particularly harsh enhancements for this category of crime, a Guidelines sentence may prove “greater than necessary” to achieve the purposes of sentencing.  18 U.S.C. § 3553(a).