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September 15, 2020, 3:02 pm CDT
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A federal judge in Memphis, Tennessee, has been kicked off a child pornography case after criticizing the computer sophistication of appellate judges and refusing to change the light sentence that she imposed.
U.S. District Judge Sheryl Lipman of the Western District of Tennessee imposed a sentence of 12 months of home confinement for the defendant, Dane Schrank, then refused to change the sentence last year after the 6th U.S. Circuit Court of Appeals at Cincinnati ruled that it was substantively unreasonable.
Now, the 6th Circuit has once again vacated Schrank’s sentence and remanded the case for resentencing—this time before a different judge.
According to the 6th Circuit opinion, Shrank visited the dark web and downloaded nearly 1,000 images of babies and toddlers “being forcibly, violently and sadistically penetrated.” Shrank confessed and pleaded guilty to possession of child pornography.
The 6th Circuit’s decision last year held that the one-year home confinement sentence ignored or minimized the severity of the offense and failed to account for general deterrence. The federal sentencing guidelines call for a sentence of 97 to 120 months in prison.
On the first remand, Lipman addressed the 6th Circuit opinion.
“I’m going to start by saying I disagree with the 6th Circuit,” said Lipman, an appointee of President Barack Obama. The 6th Circuit “second-guessed my decision” on what the sentence should be based on their own evaluation of factors, she said.
Lipman said she didn’t minimize the severity of the offense during sentencing, and she also said, “I think the 6th Circuit was completely off base on their comment there,” according to the hearing transcript.
The issue “has to do with, a little bit, the sophistication of the judges on the 6th Circuit when it comes to computers versus the sophistication, frankly, of a 21-year-old,” Lipman said during the hearing.
“The use of a computer today is done with much more ease and much more—much less exaggerated conduct than I think the 6th Circuit judges realize,” Lipman said. “I think there’s a disconnect between generations and the way in which people understand computers today versus some of us who are older.”
Lipman also emphasized that Shrank was a changed man since he made his decision to visit the dark web the two years prior.
“Maybe the 6th Circuit will reverse me again, but I can’t impose a sentence on Mr. Schrank that otherwise does not make sense to me,” she said.
The 6th Circuit had a different assessment of Shrank’s computer use.
“Despite Schrank’s alleged proficiency in computer systems, there is no ‘ease of moving’ through the dark web, as the district court suggests,” the 6th Circuit said. “It takes a conscious effort, which includes downloading special software (normally Tor routing software) and using a specific 16-digit web address that is often obtained from other users.”
The court also said child pornography “is an abhorrent offense that scars the children affected forever. And it doesn’t take an economist to know that demand drives supply. … By repeatedly downloading images of young children being raped, Schrank contributed to their past victimization.”
“To be sure, district judges have considerable discretion when imposing sentences,” the appeals court said. “But that discretion is not unfettered.”
The author of the opinion is Judge Amul Thapar, who has appeared on President Donald Trump’s short list of possible U.S. Supreme Court contenders.
Other judges on the panel were Judge Bernice B. Donald, an appointee of President Bill Clinton and a former member of the ABA Journal’s Board of Editors; and Judge Alice Batchelder, an appointee of President George H.W. Bush.
Lipman told Law.com that she has “the utmost respect for the 6th Circuit.”
“I think this is just judges doing what they think is best in a particular situation and ultimately disagreeing on that, but that’s what happens in litigation,” Lipman said.
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