Sixth Circuit reverses below-guideline sentence in child porn case

The Sixth Circuit this morning, in an interesting split 2-1 ruling, has reversed a below-guideline sentence in US v. Borho, No. 06-5288 (6th Cir. May 15, 2007) (available here).  Here are the basics from the start of the opinion:

Norman Borho pled guilty to three counts of distributing child pornography in interstate commerce, in violation of 18 U.S.C. § 2252(a)(1), and to one count of receiving child pornography that had traveled in interstate commerce, in violation of 18 U.S.C. § 2252(a)(2). The applicable United States Sentencing Guidelines called for a sentence of between 210 and 262 months of imprisonment, but the district court imposed a sentence of only 72 months. On appeal, the government argues that the sentence should be vacated and remanded for resentencing because such a large downward variance from the Guidelines range in this case is substantively unreasonable.  We agree.

Judge Rogers’ dissents, with this paragraph at the start of his thoughtful dissenting opinion:

I dissent because it was substantively reasonable for the district court to sentence a defendant to six years in prison for contributing in a small way to the market for pictures of despicable and revolting crimes against children.  While the sentence is not what my colleagues or I, or the United States Sentencing Commission, would have imposed, our duty under Booker is nonetheless to uphold the trial court’s sentence if it is reasonable.

It will be interesting to see what might become of all the recent debatable reasonableness rulings that have been recently coming from the circuit courts once we get further guidance from the Supreme Court in Claiborne and Rita.