Child Pornography Sentence Vacated - U.S. Second Circuit
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Child Pornography Sentence Vacated

In US v. Tutty, No. 09-2705, the Second Circuit vacated defendant's child pornography sentence on the ground that the district court erred when it held, relying on outdated law, that it did not have the authority to impose a non-Guideline sentence based on policy considerations applicable to all defendants.

As the court wrote:  "Defendant-appellant Jason E. Tutty pleaded guilty to one count of receiving child pornography in violation of 18 U.S.C. § 2252A(a)(2)(A). He was sentenced by the United States District Court for the Western District of New York (Siragusa, J.) to 168 months' imprisonment. On appeal, Tutty challenges the substantive reasonableness of his sentence. Upon review of the record, we conclude that the district court erred when it held, relying on outdated law, that it did not have the authority to impose a non-Guideline sentence based on policy considerations applicable to all defendants. Moreover, as we recently recognized in United States v. Dorvee, 604 F.3d 84 (2d Cir.2010), the child pornography Guidelines present important policy considerations, and unless they are "carefully applied," they "can easily generate unreasonable results." Id. at 98. We vacate the judgment and remand to the district court for resentencing to correct the procedural error and to consider the policy concerns addressed in Dorvee."

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