Youngstown Daily Legal News

Third appeal denied for man who received short sentence for child porn offenses

ANNIE YAMSON
Special to the Legal News
Published: April 20, 2015

In a recent opinion from the 6th U.S. Circuit Court of Appeals, the federal court expressed frustration when it overruled Richard Bistline’s challenge to his sentence of one year and one day in prison for knowingly possessing child pornography.

“This case is before us for a third time,” Judge Raymond Kethledge wrote on behalf of the reviewing court’s three judge appellate panel.

Bistline pleaded guilty in the U.S. District Court for the Southern District of Ohio to knowingly possessing 305 images and 56 videos of child pornography on his computer.

Case summary states that “many, if not a majority, of those images and videos” depicted young girls “being raped by adult men.”

Two of those victims, Kylie and Vickie, wrote statements which were read at Bistline’s sentencing hearings.

“The guidelines range for Bistline’s sentence was 63 to 78 months’ imprisonment,” Kethledge noted, “though the district court failed to acknowledge that fact at Bistline’s first (or second) sentencing hearing.”

Instead, the district court imposed a significantly decreased sentence of overnight confinement in the courthouse lockup, plus 30 days of home confinement followed by 10 years of supervised release.

The 6th Circuit court reversed that sentence, holding that “the sentence imposed in this case does not remotely meet the criteria that Congress laid out in Section 3553(a)” of the United States Constitution.

However, on remand, the lower court again imposed a sentence that was much lower than the guidelines range.

Bistline’s new sentence differed from his first only in the period of home confinement, which was extended from 30 days to three years.

“We reversed again,” Kethledge wrote, “holding that ‘the sentence imposed on remand does not reflect the seriousness of the offense; it does not meet the retributive goal of providing just punishment for the offense and it does not afford adequate deterrence to criminal conduct, among other deficiencies.’”

Again, the case was remanded for resentencing with an order that it be assigned to a different district judge.

A third sentencing hearing followed during which the new judge stated that he had “reviewed everything in the lengthy record before” him, including “the lengthy sentencing memoranda and exhibits.”

The district court then heard arguments from each side, testimony from Bistline’s probation officer and allocution from Bistline.

The government argued for a sentence of 60 months’ imprisonment, which was still below the guideline sentencing range.

Ultimately, the district court imposed a below-guidelines sentence of one year and one day in prison followed by 10 years of supervised release.

Bistline was also allowed to remain free pending the disposition of his appeal.

In that appeal, Bistline contended that any sentence greater than overnight confinement in the courthouse lockup violated his Sixth Amendment rights.

Kethledge began by noting that “Bistline’s briefs are unclear as to why, exactly, he thinks his custodial sentence violates the Sixth Amendment.”

“But he seems to reason as follows: First, certain of our holdings in our prior decisions in this case — namely, that the district court unreasonably applied 18 U.S.C. Section 3553(a) in choosing a sentence of overnight confinement in the lockup — ‘in effect’ amount to findings of fact (rather than holdings) that Section 3553(a) required a custodial sentence in Bistline’s case,” Kethledge wrote.

Additionally, Kethledge wrote that it seemed that Bistline thought the “putative factual findings mandated a custodial sentence of a certain length in the same manner that say, statutory minimums mandate a sentence of a certain length.”

In other words, Bistline contended that his higher sentence was mandated by “appellate judge-found facts” rather than any high court precedent.

“The short answer to this argument is that our review of Bistline’s sentence for substantive reasonableness was mandated by Supreme Court precedent rather than barred by it,” Kethledge wrote.

In his longer answer, Kethledge took umbrage with Bistline’s argument that the appellate court’s determinations were “findings of fact” and did not constitute actual rulings.

“To the contrary, Section 3553(a) requires the district court (and then the circuit court on appeal) to ‘consider’ certain factors in determining a defendant’s sentence,” Kethledge wrote. “And that kind of conclusion, we have already held, yields a judgment rather than a finding of fact.”

Kethledge held that Bistline’s Sixth Amendment argument was “meritless” and then stated that “it bears mention” that the record did not even present the argument that Bistline sought to raise.

In another argument in his appeal, Bistline argued that his sentence was procedurally unreasonable.

After noting that it would review for plain error, the reviewing panel of judges held, “There was none.”

In his last argument, Bistline argued that his 366-day prison sentence was substantively unreasonable, but the court of appeals pointed out that it could have been much worse.

“That sentence, to be clear, amounts to more than an 80 percent reduction from the low end of his original guidelines range,” Kethledge wrote. “Suffice it to say that, for all of the reasons already stated in our prior opinions in this case, Bistline’s sentence is not unreasonably harsh.”

Judge Ronald Lee Gilman and Judge Thomas Ludington, who sat by designation from the U.S. District Court for the Eastern District of Michigan, joined Kethledge in affirming the judgment of the district court.

The case is cited United States v. Bistline, Case No. 14-3874.

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