When Lower Court Judges Don't Listen

A trial court judge refuses to make a reasonable sentencing decision, and the Sixth Circuit is not amused.

|The Volokh Conspiracy |

Judge Sheryl Lipman is not a fan of the federal sentencing guidelines, nor the way the guidelines are interpreted and applied by the U.S. Court of Appeals for the Sixth Circuit. Nonetheless, as a district court judge, she is obligated to follow applicable precedent and the law of the circuit. She also has an obligation to follow the Sixth Circuit's instructions on remand. Yet that's not what she did in the case of Dane Schrank, and the Sixth Circuit is not amused.

Today, in U.S. v. Schrank, the Sixth Circuit reversed Judge Lipman for the second time for the same mistake: Imposing a substantively unreasonable sentence. To ensure this does not happen again, the panel sua sponte reassigned the case to another district court judge on remand.

Judge Thapar's (incredibly brief) opinion for the Court begins:

We have seen this case before. Dane Schrank visited the dark web and downloaded "nearly 1,000 images of babies and toddlers being forcibly, violently, and sadistically penetrated." United States v. Schrank, 768 F. App'x 512, 515 (6th Cir. 2019). After a government investigation identified Schrank, he confessed and pled guilty to possession of child pornography in violation of 18 U.S.C. § 2252(a)(4)(B).

The Sentencing Guidelines called for a sentence of 97 to 120 months in prison. Yet the district court imposed a noncustodial sentence of just 12 months' home confinement. The government appealed, and we vacated the sentence because it was substantively unreasonable. It both "ignored or minimized the severity of the offense" and "failed to account for general deterrence." Schrank, 768 F. App'x at 515. Yet on remand, the district court imposed the same sentence. The district judge criticized our court for "second-guess[ing]" her sentence and said that she refused to impose a sentence that "does not make sense." R. 47, Page ID 249, 271. But the district judge didn't stop there. She also found time to criticize the "sophistication of the judges on the Sixth Circuit when it comes to computers" and said that Schrank's misconduct—accessing the dark web over the course of five days and downloading nearly 1,000 images of children being raped—was "much less exaggerated" than "the Sixth Circuit judges realize." Id. at 250. She concluded by noting, "maybe the Sixth Circuit will reverse me again." Id. at 271.

We now do just that. Because Schrank's sentence remains substantively unreasonable, we vacate it and remand for resentencing. And given the district judge's conduct, we order that the case be reassigned on remand.

A bit more from the opinion:

we have repeatedly held that sentences are substantively unreasonable in child pornography cases when they require little or no jail time. . . . Indeed, in this very case we held that Schrank's noncustodial sentence was substantively
unreasonable given his misconduct.

Because the district court imposed the same sentence on remand, the sentence remains substantively unreasonable for the reasons set forth in our earlier opinion. . . .

To be sure, district judges have considerable discretion when imposing sentences. . . . But that discretion is not unfettered. And when a district court abuses its discretion by imposing a fundamentally unjust sentence—as occurred here—we must reverse. For our job is to review sentences, not rubber stamp them. Since Schrank's punishment does not fit his very serious crime, we once again vacate his sentence and remand for resentencing. . . .

And here's Judge Thapar's explanation of the reassignment on remand:

On remand, we order this case be reassigned to another district court judge for resentencing. This court has a duty to supervise district courts to ensure "proper judicial administration in the federal system." . . . Although the government did not request reassignment, appellate courts may sua sponte order reassignment on remand. . . .

In two prior cases involving nearly identical facts . . . our court has ordered reassignment because the record showed that the "original judge would reasonably be expected . . . to have substantial difficulty in putting out of [her] mind previously-expressed views or findings." Bistline, 720 F.3d at 634 (quotation marks omitted) . . . That same rationale compels reassignment here.

The district court began the resentencing hearing by stating, "I disagree with the Sixth Circuit." . . . The district court then imposed the same substantively
unreasonable sentence. And at one point during the hearing, the district court even acknowledged, "maybe the Sixth Circuit will reverse me again, but I can't impose a sentence on Mr. Schrank that otherwise does not make sense to me."  . . . Thus, despite our binding holding, the district judge refused to follow the law and impose an appropriate sentence.

Schrank's sentence is vacated, and the case remanded for reassignment and resentencing.

Update: For Judge Lipman's perspective, here is the transcript of the proceedings below. Judge Lipman explains her reasoning at pages 27-30.

 

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  1. Sheryl H. Lipman. Appointed by…

    Well we know who.

    1. Yes, I’m cynical — but much to my surprise, he’s White.

      But back to the basic issue — if you can, say, roast your own child to death in an electric oven (it’s happened) and get out of it on a psych basis, well — *normal* people wouldn’t have any interest in these type of pictures so maybe the judge was right in letting the Voodoo Scientists play with him….

      1. Actually, he’s a she. Dr. Ed., a word of advice: If you’re going to make stuff up, as you frequently do, don’t make stuff up that can be checked in ten seconds on google.

        1. Krychek_2, DANE SCHRANK is very much a “he”, as you can see from the attached sex offender photo: https://www.homefacts.com/offender-detail/TNSO013728/Dane-Mitchell-Schrank.html

          1. Ah. I thought you were referring to the judge.

    2. Another judge advancing some new LGBTQP right I assume.

      1. Yeah, the idea that the left wants to add P is some QAnon garbage.

        1. Look whose the pedophobe now!

        2. Yeah, the idea that the left wants to add P is some QAnon garbage.

          Maybe you should check on the general political leanings of those who have been publicly defending Cuties.

          1. Yeah – I”m one of them. It’s not sexualizing children, it’s about the sexualization of children.

            This is QAnon nonsense.

            1. Yeah – I”m one of them. It’s not sexualizing children, it’s about the sexualization of children.

              Yes, because filming little girls twerking, grinding their private parts against one another, talking about engaging in sex, watching porn, etc, etc is totally not sexualizing children. It’s all about showing the audience what sexualization of children looks like so they’ll know it when they see it.

              And those snuff films from the ’70s? They weren’t gratuitous displays of gruesome murder. They were simply decrying it.

              1. This isn’t a porno. It’s not a snuff film. It deals with issues we as a society have with sexualizing marginalized children.

                I’m not going to see it, but your pushing a dumbass demonization narrative in service of at best a dumb moral panic and at worst a QAnon op.

                1. I’m not going to see it

                  So you’re such a knee-jerk apologist for pedophilia you’re defending this crap without even having any actual knowledge about it? Just when I thought you couldn’t be any more of a contemptible piece of crap….

                  1. knee-jerk apologist for pedophilia
                    Fuck all the way off.

                    I’ve seen it’s synopsis, and know it’s not what you say it is. Have you seen it?

                    Jesus, Wuz. Fuck you again. FUCK YOU.

                    1. Fuck all the way off.

                      Uncomfortable truths seems to really trigger you.

                      I’ve seen it’s synopsis, and know it’s not what you say it is.

                      Holy crap. Did you manage to keep a straight face while you typed that?

                      Have you seen it?

                      I skipped through it, and after I’d seen enough to know that both you and the “synopsis” are utterly and completely full of shit, stopped.

  2. The Sentencing Guidelines called for a sentence of 97 to 120 months in prison.”

    I’m not sure I disagree with the judge on this — how much time would he have gotten had he actually raped a child? Call me cynical, but with a plea deal, I doubt he’d get half of that.

    I’ve seen it happen too often — and hence the issue of perspective,
    As disgusting as what he did was, *he* didn’t *personally* violate any children, and I do think the perps actually doing it are worse…

    1. With acceptance of responsibility and no other enhancements, raping a child would come with a Guidelines range of 210-262 months at Criminal History Category III.

      I’ve seen it happen too often

      No, you haven’t.

      1. There are judicial arguments out there, in other cases, that guideline sentences in child pornography cases are sometimes too harsh. These are cases where the guidelines come up with 20 years (240 months, as they say) or something similar. And of course, there are mandatory minimums with respect to some of these offenses.

        In those situations, you can start making the comparisons that Dr. Ed is making to actual cases of assault (although most such cases are prosecuted under state law, not under the guidelines). The legal system has made a policy decision that child pornography is a gigantic problem (which is undeniable) and that is reflected in the sentencing. The Sixth Circuit is right on the law here.

        What I would say is this. The sentencing guidelines, which Scalia was always correct about by the way, should have been found to be both a giant violation of the jury trial right and a giant violation of the separation of powers. If Congress wants to mandate a minimum sentence, that’s one thing, but sentencing isnt’ some mechanized thing. Of course, non-mechanical sentencing will actually lead to more disparities like the one Dr. Ed hypothesizes. But I would rather that a human being, not a chart, determine sentences. The guidelines, and the people who wrote them, are an abomination.

        1. Isn’t it a bit of a damned if you do, damned if you don’t problem?

          With strict guidelines, you have the occasional case where most judges would choose a sentence outside the guidelines based on the specific facts, which is bad.

          Without strict guidelines, you have similar cases getting wildly disparate sentences because some judges are quite a bit softer/harsher at sentencing than others. Two people who committed identical crimes getting vastly different sentences is bad, too.

          1. It is true that the fundamental problem with sentencing is that it is impossible to be both consistent and human.

            But the Constitution requires humanity. You enforce a certain level of consistency through good process, but at the end of the day, juries are supposed to be able to give different people different sentences.

            1. Juries decide sentences in non-capital cases? I thought sentencing was strictly the purview of judges. I’m wrong about that?

              (Incidently, my friend, a very experienced and accomplished litigator, tried cases in front of Judge Thapar in KY before the judge was promoted to the Six Circuit by Trump. He thinks Thapar is the smartest, most capable trial court judge he ever had the pleasure of appearing before.)

        2. The sentencing guidelines, which Scalia was always correct about by the way, should have been found to be … a giant violation of the jury trial right

          Isn’t that pretty much what happened?

          1. No. It almost happened, but instead, the Court found them to be “advisory”. Which would have been fine if they had truly been “advisory”, i.e., the trial court must look at the guidelines, but isn’t required to follow them.

            But what happened instead is the courts made the “advisory” guidelines almost mandatory- yes, courts can depart for them, but their decisions to do so are reviewed and frequently reversed.

            1. “their decisions to do so are reviewed and frequently reversed.”

              Is that a bad thing?

              Putting aside logistics, suppose you could have every case reviewed by a large panel of judges, who would each submit a sentencing recommendation, and you’d take the median for the actual sentence. That would eliminate the judge to judge variability, and so you wouldn’t need guidelines.

              That is a logistical impossibility, but doesn’t review and reversal sort of accomplish the same thing – the judge can give an extraordinary sentence, but only if he can convince his fellow judges to allow it. Doesn’t that accomplish somewhat the same thing as the large panel?

            2. The Supreme Court has been pretty clear that a non-guidelines sentence isn’t presumptively wrong, a within-guidelines sentence isn’t presumptively reasonable, and that the sentence ultimately has to be justified with reference to the § 3553(a), regardless of the guidelines calculation. In my own practice, I haven’t seen much to suggest that circuit courts are reviewing non-guidelines sentences any more strictly than within-guidelines ones. (My sense is that judges around the country are largely ignoring the methamphetamine guidelines, for instance, and I haven’t seen or heard of any significant pushback from above.) And the sentencing commission recently found that (unsurprisingly, perhaps) district judges are giving a much wider range of sentences than they were pre-Booker/I>, so I don’t think the change is illusory.

    2. I’ve seen it happen too often

      Sure you have. In between your time studying education law and hate crime law and monitoring what student groups do on campus, you watch child sexual abuse trials.

  3. … and there can be no sanction to the judge for such misbehavior?

  4. I think the judge would be entitled to give the minimum guidelines sentence accompanied by an opinion explaining the judge’s belief that the law as interpreted by the 6th Circuit is wrong and recommending that the Supreme Court and/or Congress change it.

    Extremely sentences for non-violent crimes that arouse intense feelings of revulsion in the public are not new in this country. In Perkins v. North Carolina, a 1964 case, a federal district judge upheld the constitutionality of a 20-30 prison sentence for consensual sodomy (his accomplice had pled guilty and gotten 5-7 years), but ended his opinion with a plea to the North Carolina legislature to reconsider the law, asking why a single act of consensual sodomy deserves a minimum 5 year and maximum 60 year sentence, a greater maximum sentence than 2nd degree murder, armed robbery, and numerous other violent crimes.

    The district judge here is entitled to do the same thing, announce the law as it is, issue a decision following it, and then end the opinion with a plea to the legislature for a change in the law.

  5. In general, I think guidelines sentences tend to be too harsh, especially for drug crimes. But I’m not sure a ten year sentence for someone who downloads hundreds of images of violent child porn over a multi-day period is the case I would choose to wage that battle.

  6. a) If the Sixth is so concerned about “deterrence”, what deterrence did it invoke in this case to prevent a recurrence of this behavior by Lipman?

    b) Would there be a defense today that it was for “artistic and social” purposes, as is claimed for Cuties by Netflix?

    1. a) If the Sixth is so concerned about “deterrence”, what deterrence did it invoke in this case to prevent a recurrence of this behavior by Lipman?

      They’re probably counting on it being extremely difficult to surf the dark web and download kiddie porn while a guest of the Greybar Hotel. Also, his doing a little extra thinking about the consequences of engaging in said behavior once he’s been released.

      1. Lipman is the judge, not the perp.

        1. Well, I clearly misread the hell out of that one. Never mind.

  7. But there is no constitutional command binding lower courts to irrational Supreme Court precedent.

    If you doubt my contention, please cite the constitutional provision that obligates lower courts to follow Supreme court precedent.

    1. How about that courts are arranged, by law, vertically, obligating lower court judges to conform to higher court decisions?

        1. I don’t get your point.

          1. My dumb comment above (and it *was* dumb) was actually a dumb comment in support of that PA judge ignoring precedent to strike down lockdown orders.

            It bespeaks a certain double standard in the comentariat, if not in individual commenters.

            We agree this is a bad opinion for exactly the reason you laid out. But agreement is boring. You cool with Stickmans’ opinion or is it also bad under the same logic?

            1. Ah. Okay.

              I decline to comment further since I don’t know about the PA judge’s orders. I’ve pretty much ignored all the pro/anti lockdown arguments/decision/court cases, etc. etc.

              1. OK. Can’t fault you on that.

            2. There is a difference. One is not applying a century-old decision which has been modified and limited in the interim through the natural evolution of law, for reasons logically set forth in the current decision.

              The other is ignoring current [i.e., within the past few months] law – which, in the Sixth District is what the Sixth District says it it – unless, if and when, SCOTUS says otherwise. For reasons of “I don’t feel like it.”

              1. Applying Lochner isn’t really good law.

  8. Why one lone trial court judge should go off and do their own thing, re-interpreting clear guidelines as they saw fit, shouldn’t surprise anyone. In fact, it’s the natural consequence of the prevalent judicial philosophy of the left. Had this not been a child porn perp, rather than say, some “love is love” or trans supporting decision, it would be unremarkable (and probably supported by lefty types).

    1. But she didn’t re-interpret clear guidelines. She explicitly said she was ignoring clear guidelines. Had she found an interpretation for the guidelines, be it ever so tortured, that supported her bottom line, this would be a different case.

      1. Doesn’t matter, either way.

        1. Yes it does. In one case you have a judge disagreeing with you as to what the law means, in another case you have a judge refusing to enforce the law. The first judge at least accepts the rule of law. And even if the first judge’s interpretation is completely disingenuous, at least that one is giving lip service to the rule of law, whereas the second one is an outright anarchist.

          1. Dunno if I agree with you on this one, Krychek. Defiance cloaked under pretext can be just as damaging to the rule of law as open defiance, albeit in a different way.

            Now, the bar to rebut good faith and prove pretext may be high indeed, but it exists, and willful blindness in service of avoiding anarchy will just get you nice polite anarchy.

          2. The guidelines are not “the law.” They are… (wait for it) guidelines. The judge may have abused her discretion, but she did not “refuse to enforce the law.”

      2. The sentencing guidelines are no longer mandatory. A judge has to calculate them correctly—but the judge is then permitted to disregard them and impose a sentence below (or above) them, as long as that sentence otherwise satisfies the applicable sentencing factors.

  9. For clarification, IIRC, this is not someone who abused a child, or took lewd photos of them. Instead, he downloaded photos that other people took. With that in mind, 97-120 months (8-10 years) for downloading pictures?? Since this is also accompanied by registration on the sex offender registry, this seems out of proportion to the harm done. By comparison, Mike Tyson went to prison for 5 years, out in 3 for actually raping someone. Problem is, no one wants to be the politician that is known for reducing sentences for anything related to child porn.

    1. I’m not sure why the fact that someone else in another jurisdiction got an inappropriately lenient sentence for a different crime 30 years ago requires us to support an inappropriate lenient sentence in this case.

  10. Everything said below applies equally to low-level drug users.

    Demand drives supply there too, and by purchasing the $5 bag of Heroin, the user is contributing to the future harm of drug trafficing. So why not toss every addict into prison for 10 years?

    “And it doesn’t take an economist to know that demand drives supply….And by fueling the demand for child pornography, his conduct likely also contributed to the future harm done to children in the name of profit. His ultimate sentence must reflect the severity of his depraved criminal conduct. Likewise, “general deterrence is crucial in the child pornography context.”… Child pornography offenses happen in the shadows, making it difficult to apprehend perpetrators like Schrank who use anonymizing software to hide their identities. It is thus especially important that courts impose sentences sufficient to deter this clandestine criminal conduct. Indeed, a noncustodial sentence in a child pornography case will almost always be insufficient to account for general deterrence.”

    1. Everything said below applies equally to low-level drug users.

      It does not.

      Demand drives supply there too, and by purchasing the $5 bag of Heroin, the user is contributing to the future harm of drug trafficing. So why not toss every addict into prison for 10 years?

      But there isn’t any harm inherent in drug trafficking,¹ whereas there is harm inherent in producing child pornography.

      That having been said, I doubt the deterrent effect of a harsh sentence in a case like this. Maybe in cases involving 16- or 17-y.o.s. But if it’s actually babies and toddlers as the opinion says, then the people involved have very serious psychological problems.

      ¹Yes, a drug trafficker could be violent, of course, but that’s not inherent in drug trafficking. Whereas it is impossible to produce child pornography (with real children, anyway) without harming children.

      1. You didn’t grow up worrying about stumbling upon drug smugglers in the fog — and getting shot. Drug production and smuggling is INHERENTLY violent — e.g. Columbia, Mexico, etc.
        And drug money funds terrorism — that’s kinda violent.

        1. Giving examples of something resulting in violence is not proof that it is *inherently* violent.

        2. Dr. Ed 2: You just claimed that Pfizer is a violent criminal gang because it produces drugs.

          LAW is inherently violent. Just like alcohol Prohibition, the violence of drug production and smuggling is upon those that send armed men to stop it and put unlicensed businessmen in a cage.

    2. The argument for harshly punishing the malum prohibitum of driving demand for child pornography is the encouragement of the malum in se of producing child pornography.

      Driving demand for drugs, on the other hand, would be a malum prohibitum to deter encouragement of the malum prohibitum of producing drugs. The malum in se produced by drug trafficking is not an inherent property of drug trafficking, but a secondary effect of the malum prohibitum, as is illustrated by looking at the history of the trafficking of the drug alcohol before, during, and after its prohibition.

      Just as it is entirely rational to punish and deter malum in se more severely than malum prohibitum, it is entirely rational to punish and deter actions that directly encourage malum in se more severely than those that only directly encourage malum prohibitum, with any malum in se promotion an indirect effect.

  11. Could it be that Judge Sheryl Lipman — who spent a dozen years as University Counsel for the University of Memphis and three years before that as Senior Attorney — knows more about the “Dark Web” than the circuit judges do?

    The latter make a big point about having to (a) download Tor and (b) obtain a 16-digit number. Well, anyone with an IQ above 12 has already downloaded Firefox (for a browser) and while I’m not quite sure what the “16-digit number” is, I don’t think that obtaining one is anywhere as near as complicated as the circuit judges seem to think it is.

    And what’s not being said here is that if it was so easy to catch this perp, why didn’t the FBI shut the site down? If it’s overseas, go after the country hosting it and/or block it. For all the reasons cited above and by the court, shut these creeps down for the good of the children.

    Call me cynical, but I wonder how much of this is governmental entrapment — I do know that before they were banned, college police were running ads for prostitution on Craig;s List and Backpage. That was to “protect the students.”

    1. I do know that before they were banned, college police were running ads for prostitution on Craig;s List and Backpage.

      No, you don’t.

  12. Since Judge Lipman includes herself among the people who didn’t understand how computers work, no, I don’t think so.

  13. Can anyone point to any instances of XX females being prosecuted for downloading/consuming/being end-user of kiddie porn? I imagine this is as much, or more so, a “guy” thing as rape. Not just a matter of physical impossibility, but also fundamental brain wiring? though in some relatively rare instances women have been there as accomplices with sexually psychopathic men.

  14. Juries decide sentences in non-capital cases? I thought sentencing was strictly the purview of judges. I’m wrong about that?

    (Incidently, my friend, a very experienced and accomplished litigator, tried cases in front of Judge Thapar in KY before the judge was promoted to the Six Circuit by Trump. He thinks Thapar is the smartest, most capable trial court judge he ever had the pleasure of appearing before.)

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