Fourth Lays Out Post-Gall Procedures, Upholds Downward Variance

US v. Pauley: Pauley pleaded guilty to one count of possessing child pornography. The unusual facts of the case involve Pauley, a middle school (later high school) teacher, being approached by a female student who asked whether he was interested in paying her for nude pictures she took of herself. Pauley agreed and pictures were exchanged during successive school years. When both Pauley and the student moved to high school, she proposed to take pictures of herself and another female student. The pictures were taken, but the other student informed authorities, who recovered the pictures.

At sentencing, the district court calculated Pauley's advisory Guideline range to be 78 to 97 months in prison. After hearing arguments from the parties, the district court imposed a sentence of 42 months in prison, for numerous reasons:

(1) in buying the nude photographs each time, Pauley initially was approached by the victim with such a proposal; (2) fewer than two dozen pornographic photographs were taken with the victim’s Polaroid camera; (3) the victim’s face did not appear in any of the photographs; (4) Pauley displayed deep remorse; (5) besides the criminal conduct at issue, Pauley was a model citizen and a good father and teacher; (6) as a result of his conviction, Pauley lost his teaching certificate and his state pension; (7) Pauley agreed to a lifetime of supervised release; (8) no other child pornography was found in Pauley’s house; and (9) the counseling Pauley would receive during incarceration would rehabilitate him, allow him to lead a productive life upon release, and make further crimes by Pauley extremely unlikely.

The Government appealled, arguing that Pauley's sentence was unreasonable. The Fourth Circuit unanimously rejected that argument. In doing so, it set forth the procedure to be used in a post-Gall world:

Recently, the Supreme Court decided two cases which together explain in detail the mechanics of Booker’s remedial holding. See Gall v. United States, No. 06-7949, 2007 WL 4292116 (U.S. December 10, 2007); Kimbrough v. United States, No. 06-6330, 2007 WL 4292040 (U.S. December 10, 2007). In Gall, the Court instructed that the sentencing court should first calculate the applicable Guidelines range. 2007 WL 4292116, at *7. This starting point furthers Congress’ desire for efficient administration and nationwide consistency in sentencing. Id. After calculating the Guidelines range, the sentencing court must give both the government and the defendant 'an opportunity to argue for whatever sentence they deem appropriate.' Gall,
2007 WL 4292116, at *7. The sentencing court should then consider all of the §3553(a) factors to determine whether they support the sentence requested by either party. Id.; see also Kimbrough, 2007 WL 4292040, at *10 (noting that, while § 3553(a) requires the sentencing
court to give due consideration to the Guidelines, Booker allows the sentencing court to fashion the sentence in light of other statutory considerations). In so doing, the sentencing court may not presume that the Guidelines range is reasonable. Gall, 2007 WL 4292116, at *7. In the event the sentencing court decides to impose a variance sentence, i.e., one outside of the recommended Guidelines range, the sentencing court 'must consider the extent of the deviation and ensure that the justification is sufficiently compelling to support the degree of the variance.' Id. As noted by the Gall Court, it is an 'uncontroversial' proposition that a 'major departure should be supported by a more significant justification than a minor one.' Id.

Reviewing Pauley's sentence, the court held that the district court's variance "is reasonable and premised on the factors set forth in §3553(a)."

Congrats to CJA counsel Ben Baily and Deirdre Purdy on the win!