Legal Opinions - U.S. 4th Circuit Court of Appeals

Daily Record, The (Baltimore), Jan 28, 2008

Criminal Law

Sentence variance

BOTTOM LINE: District court's downward sentence variance was supported by the justifications necessary to support the sentence because the court properly considered and emphasized the mitigating factors under 18 U.S.C. [section]3553(a).

CASE: United States v. Pauley, No. 07-4270, (filed Dec. 28, 2007). (Judges Williams, Motz & HAMILTON).

COUNSEL: Robert Booth Goodwin, II, Assistant United States Attorney, Office of the United States Attorney, Charleston, WV, for Appellant. Benjamin Lee Bailey, Bailey & Glasser, L.L.P., Charleston, WV, for Appellant.

FACTS: Larry Pauley was an art teacher at a junior high school in Albans, West Virginia. Pauley was approached by a female student (the victim) who asked if he was interested in paying her money if she took nude photographs of herself. Pauley agreed to the proposal.

A similar transaction took place during the next school year and Pauley gave the victim his Polaroid camera and some film, which the victim placed in her school locker.

School personnel discovered the film in the locker during an investigation. During a subsequent search and seizure warrant executed at Pauley's home investigators also discovered the nude photographs Pauley had bought from the victim on the previous occasion. Pauley was charged with possessing images of child pornography and plead guilty.

In preparation for sentencing, a presentence report was prepared. The district court ultimately determined that the sentence deserved a downward variance based on several factors under 18 U.S.C. [section]3553(a), including that the victim initially approached Pauley, the photographs did not include the victim's face, and that Pauley would likely be rehabilitated with counseling, among other factors.

On appeal, the government contended that the sentence imposed by the district judge was unreasonable because the district court did not offer compelling reasons justifying the substantial variance from the advisory Guidelines range. The sentence was affirmed.

LAW: Appellate review of the reasonableness of the sentence focuses on whether the sentencing court abused its discretion in imposing the chosen sentence. Gall v. United States, No. 06-7949, 2007 WL 4292116, 7 (U.S. December 10, 2007). This abuse of discretion standard of review involves two steps. The first step examines the sentence for significant procedural errors, the second looks to the substance of the sentence.

There were no procedural errors. The parties agreed that the district court correctly calculated the Guidelines range to be 78 to 97 months imprisonment. The district court then carefully considered the [section]3553(a) factors to determine whether they supported a variance sentence.

The district court's rationale for varying downward 36 months from the low end of Pauley's guidelines range was reasonable and premised on the factors set forth in [section]3553 (a).

In its ruling, the district court emphasized that certain facts relating to the nature and circumstances of Pauley's conviction were mitigating. Considering all of the factors that the district court viewed as mitigating in their totality, the 36 month downward variance was supported by the justifications necessary to uphold the sentence.