In United States v. Schrank, No. 19-5903 (6th Cir. Sept. 14, 2020), the Sixth Circuit sets aside a criminal sentence for a second time, and remands for sentencing before a different judge.
The defendant was convicted of downloading 1000 images of child pornography, which under the Sentencing Guidelines called for incarceration in the range of 97 to 120 months. The district court nevertheless imposed only a 12-month sentence of home confinement. “The government appealed, and we vacated the sentence because it was substantively unreasonable. It both ‘ignored or minimized the severity of the offense’ and ‘failed to account for general deterrence.’”
On remand, nevertheless, the district court imposed the exact same sentence. The district judge criticized the Sixth Circuit for “second-guess[ing]” the original sentence and refused to impose a sentence that “does not make sense.” “But the district judge didn’t stop there. [It] also found time to criticize the ‘sophistication of the judges on the Sixth Circuit when it comes to computers’ and said that Schrank’s misconduct . . . was ‘much less exaggerated’ than ‘the Sixth Circuit judges realize’ . . . . [The district court] concluded by noting, ‘maybe the Sixth Circuit will reverse me again.’”
The panel reverses once again. “This court is well-aware of the sophisticated operations of the dark web. Schrank surreptitiously and repeatedly downloaded violent child pornography from a clandestine website . . . . Child pornography offenses happen in the shadows, making it difficult to apprehend perpetrators like Schrank who use anonymizing software to hide their identities. It is thus especially important that courts impose sentences sufficient to deter this clandestine criminal conduct. Indeed, a noncustodial sentence in a child pornography case will almost always be insufficient to account for general deterrence.”
Concluding that the sentence must once again be reversed, the panel sua sponte orders that the matter be reassigned to another judge, finding that the prior judge would have substantial difficulty in “putting out of [its] mind previously-expressed views or findings . . . . [D]espite our binding holding, the district judge refused to follow the law and impose an appropriate sentence.”