In United States v. Bistline, No. 10-3106, 2012 WL 34265, at *1-*15, (6th Cir. Jan. 9, 2012) Richard Bistline pled guilty to knowingly possessing more than three hundred images and videos of child pornography. Most of those images contained eight to ten year old girls being raped by adult men. According to current sentencing guidelines Bistline should have served sixty-three to seventy-eight months behind bars for his offense. The district court that heard his case did not agree. Bistline was sentenced to serve one night in the courthouse jail and ten years supervised release. The decision was appealed and reviewed by the Sixth Circuit Court of Appeals.
In its written opinion the district court held that the sentencing guidelines under § 2G2.2 were "seriously flawed" because Congress took an active role in crafting the guideline. Essentially the district court felt that Congress should have let the Sentencing Commission do the job that Congress appointed them to do. The Court of Appeals rejected this notion and stated, "Congress can marginalize the (Sentencing) Commission all it wants: Congress created it."
The district court also objected to the guidelines on the belief that two lawyers from the Justice Department lobbied a naive congressman to add sentencing changes to the Amber Alert bill. The Court of Appeals quickly discarded the argument by stating that both Houses of Congress and the President approved the legislation. What happened before that was not the court's concern.
The final objection to § 2G2.2 that was outlined by the district court was that the sentencing guideline was "not arrived at through empirical study and data," citing Kimbrough v. United States, 552 U.S. 85 (2007). The Court of Appeals compared Kimbrough, which outlined how a district court could disagree with a guideline on policy grounds, to the case at bar. They found that the current case was not like Kimbrough because Congress' power to make sentencing policy flows directly from the Constitution.
In determining if the sentence that the district court gave to Bistline was reasonable, the Court of Appeals noted that the crime of possession of child pornography went "virtually unpunished in this case." The Court of Appeals rejected the lower court's theory that Bistline innocently became caught up in a free website and, therefore, did not actively seek the pornography, but that the pornography actively sought him through advertising and/or viruses. It was noted that Bistline knowingly acquired hundreds of images over a period of about one year. With this reasoning the Court of Appeals found that the sentence imposed on Bistline did not reflect the seriousness of his offense as outlined by Congress in § 3553(a). Bistline's sentence was vacated and remanded back to the lower court.