U.S. Sixth Circuit - The FindLaw 6th Circuit Court of Appeals Opinion Summaries Blog

After Polling Jurors, Judge Imposes Minimum Child Porn Sentence

Is five years too short of a sentence for a man found with 19 videos and 93 images depicting child pornography? Not according to Judge James S. Gwin of the Northern District of Ohio. Gwin imposed the minimum sentence against Ryan Collins, but only after polling the jurors who had convicted him.

And those jurors, had they been in charge of sentencing, would have imposed a much lighter punishment. Some jurors thought no incarceration was appropriate, while all but one recommended a sentence of less than two and a half years.

Twelve Not-So-Angry Jurors

Ryan Collins was caught with child porn after investigators downloaded illegal pornography from his computer, via peer-to-peer file sharing software. After he was found guilty for possessing and distributing child porn, Judge Gwin asked jurors to weigh in on the appropriate sentence.

It seems like most jurors weren't too enraged by Collins' crimes -- at least not enraged enough to throw the book at him. Jurors' believed that the appropriate sentence was anything from no incarceration to 5 years' incarceration, with all but the five-year advocate recommending less than half the mandatory minimum. The average recommendation was just 14.5 months, barely over a year.

Those ranges were in sharp contrast to the 262 to 327 months recommended by federal sentencing guidelines.

At sentencing, Judge Gwin revealed that he had polled the jurors and considered their responses when fashioning Collins' sentence. He then imposed the mandatory minimum of five years' incarceration.

The jury's recommendations, Gwin said, "reflect how off the mark Federal Sentencing Guidelines are."

One Factor Among Many

Prosecutors appealed, arguing that the district court had abused its discretion by giving unreasonable weight to the jury's recommendation. The Sixth Circuit disagreed.

Sixth Circuit precedent doesn't endorse juror polls prior to sentencing. In 2010's United States v. Martin, for example, the court questioned, in dicta, whether they could provide "meaningful data" or were simply an "academic exercise." Nonetheless, polling is not forbidden, and judges may rely upon juror polls so long as they do not ignore enumerated sentencing factors.

The district court did not impermissibly commingle the roles of the judge and jury, the Sixth found. "Federal law provides nearly unfettered scope as to the sources from which a district judge may draw in determining a sentence," the Court wrote. The law further allows judges to reject recommended sentencing guidelines based upon policy disagreements, which Judge Gwin certainly did.

Does the Sixth Circuit's opinion mean that judges will suddenly start turning to juries for guidance on sentencing? No. But should a judge decide to have them weigh in, and to consider their opinion along with other factors, she can now do so without worrying that her sentence will be tossed on appeal.

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