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2nd Cir. Vacates Weak Child Porn Sentence Imposed by Judge Weinstein

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By Gabriella Khorasanee, JD on October 02, 2013 3:49 PM

Though Judge Weinstein means well when he quotes the Bible and wants leniency for a particular defendant convicted of distributing child pornography, he may be standing alone.

"[T]hou shalt not let any of thy [children] pass through the fire to Molech," he recites in his Memorandum and Order, but it seems he's overlooking one important fact. The defendant, though a minor when he started his crimes, was 19 when he committed the crime he was convicted of.

In fact, you can see the divide between the district court and the Second Circuit just from the case titles alone. Judge Weinstein chose to shield the defendant and refers to him as C.R., while the Second Circuit addresses him by his full name, Corey Reingold, since he is an adult.

The Sentence

At 15, Corey Reingold ("Reingold") became a member of GigaTribe, an online file sharing program. In order to download files, one must also share files for download. Over the course of four years, Reingold downloaded over 100 videos and a minimum of 208 photos of child pornography. In addition, from the ages of 15 to 19, Reingold engaged in sexual activity with his half-sister who was a minor.

Reingold pleaded guilty to one count of distributing child pornography, and the mandatory minimum sentence for such an offense is five years, yet Judge Weinstein only sentenced him to a 30-month jail sentence. Judge Weinstein did so after nearly two years of hearings, and review of "a dozen expert witnesses in the fields of child sexual abuse; online child pornography; risk assessment; treatment of sex offenders; and neuropsychology and adolescent brain development," as noted in his 401-page opinion. He concluded that in his circumstance, it would be cruel and unusual punishment to sentence Reingold to a five-year prison sentence.

The Government appealed on two grounds, arguing the district court erred: (1) in not sentencing Reingold to the mandatory minimum sentence; and (2) by not applying sentencing enhancements.

The Mandatory Minimum Is Not Cruel and Unusual Punishment

In reviewing the district court's analysis, the Second Circuit found that the district court applied the wrong analysis. The Supreme Court of the United States has laid out two distinct tests for Eighth Amendment proportionality jurisprudence, those espoused in Harmelin v. Michigan (case specific analysis) and Graham v. Florida (categorical-rule analysis). Here, the court found that Harmelin applies.

Under Harmelin, the court must look at whether the "'gravity of the offense and the severity of the sentence' give rise to an 'inference of disproportionality.'" Here, the court found the sentence was not disproportionate, noting the gravity of the offense was very serious considering the long-term effect on abused children, and that "substantial deference" is given to legislated mandatory minimum sentences.

Sentence Enhancements

Three sentence enhancements were at issue: (1) exploitation of a minor or pattern of abuse; (2) use of a computer; and (3) distribution of child pornography. The Second Circuit found that the district court wrongly relied on "Reingold's minority, lack of temporal proximity, and inadequate supervision as grounds not to consider his contacts with his sister as ... enhancement in this case." With regard to the second and third enhancements, the Second Circuit concluded that they did not constitute "double counting."

Though Weinstein's intentions may be noble, his views still remain unpopular. While adversaries of the mandatory minimum sentence structure may find support for certain non-violent offenses, it's unlikely that child pornography will be one of them.

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