Fourth circuit criticism of 2G2.1

The Fourth Circuit has affirmed a sentence of prison plus a lifetime of supervised release in United States v. Helton.  The lower court imposed the release term along with a sixty month prison sentence for possession of child pornography.  The prison term was a substantial downward variance from the guidelines, a fact which the court relied upon to sustain the lifetime supervised release term.

Most notable is Judge Gregory’s concurrence.  He agrees with the result, but is clearly uncomfortable with sentencing practices for these offenses, not excluding those which are below guidelines.  He explicitly states that a downward variant sentence could, in a different case, be substantively unreasonable.  There are too many quotable passages from the concurring opinion to include in this post, so I will limit myself to quoting his concluding paragraph:

We measure our humanity by the justice we mete to those thought least deserving. I join the majority in affirming the district court, which I believe did an admirable job crafting an individualized sentence. Perhaps in the future, our Guidelines will evolve to become truly proportional to the severity of our crimes. And perhaps then, a district court will not be in the lamentable position of having to balance the need to depart downward from an excessive Guideline term with an entire lifetime of supervision.

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