I will need to track down and review closely Judge Weinstein's lengthy opinion in this case before I would feel comfortable weighing in on this specific sentencing decision. But I already can state that I am sure federal prosecutors involved in this case are sure to feel quite uncomfortable when trying to decide whether to appeal this sentencing decision to the Second Circuit as unreasonable.
Assuming Judge Weinstein did not disregard any applicable mandatory minimum statute nor made any other clear doctrinal error, federal prosecutors might have a hard time establishing on appeal that Judge Weinstein's exercise of his post-Booker discretion in this case was unreasonable (especially in light of the Second Cicuit's significant 2010 Dorvee ruling which stressed the "irrationality" of the child porn guidelines). But a decision by federal prosecutors not to appeal this sentence might be viewed, perhaps properly, as a tacit admission by the government that a non-prison sentence can be appropriate in some child porn downloading cases.
Doug knows a great deal about sentencing law, but his words here show that he knows almost nothing about the workings of US Attorneys' Offices -- or (with all respect) what it means to take pornography law seriously.
I was head of the appellate division in a reasonably large US Attorney's Office for 18 years. The only thing that would make me "uncomfortable" would be taking more than 15 minutes to file a notice of appeal in this outrage of a case. The US Attorney would correctly see a ruling like this -- especially on the heels of Weinstein's Corey Reingold adventure -- as outright defiance. Defiance, that is, of law, of any residual seriousness in child porn sentencing, of the child victims, of sobriety in the prosecution function, and of the Second Circuit.
It's especially ironic that SL&P cites the Doryee case as supporting a no-appeal decision (while never mentioning the government's successful appeal in Reingold). In Doryee, the appellate court upheld a sentencing appeal in the post-Booker, post-Gall era of broad district court discretion, on the ground that the lower court's sentence was so out-to-lunch (too high, in that instance) that it shocked the conscience.
It is a testament to how incredibly distorted pro-defense thinking has become that it would view a sentence of zero in a child pornography case as anything but shocking to the conscience.
P.S. I should probably note one of the comments to Doug's entry that shows why this case is going to get appealed and why the government is going to win.
The comment, from a person who identifies himself as "USPO," states:
I agree that the guidelines are too high for mere possession of child pornography. The offense level is raised for ordinary use of a computer, and for the number of images, even though one can download hundreds of images in a short period of time. However, this defendant's explanation is BUL**HIT. It is virtually impossible to inadvertently stumble across child pornography. It is beyond credulity that it "kept popping up." It is clinically unfathomable that anyone who magically managed to experience this constant barrage would keep it on their computer and offer it for download through a P2P shared folder (not to mention move some of the files to a thumb drive) if they were not aroused by it).
The New York Journal article also mentions that defendant's downloading behavior spanned a year.
The sentencing commission (often prodded by an hysterical congress) has forfeited it's credibility. Judge Weinstein has forfeited his as well.
Again, I have $500 that says this travesty gets appealed, the government wins, and Jumpin' Jack gets nary a vote.