Legal View: Fireworks as 11th Circuit rights a wrong

By Pat Murphy
The Daily Record Newswire

I may not be a federal judge, but even I understand that a sentence of 17-1/2 years isn’t nearly enough for a man who raped and tortured 50 little girls.

Fortunately, the judges of the 11th Circuit had the chance to correct that mistake.

And correct it they did, although the 256-page decision had the judges slinging bar stools at each other.

Let’s start with first principles.

The U.S. Sentencing Guidelines are a mess.

Like the U.S. Tax Code, the U.S.S.G. is a monstrosity that could only be the brainchild of someone who receives a government paycheck.

Since Congress created the U.S. Sentencing Commission in 1984, the federal judiciary from the Supreme Court on down has been debating how many angels can dance on the head of a pin.

My eyes bleed as I read federal judges trying to figure out who’s a career offender, what’s a violent felony and what to do about crack cocaine disparities.

Of course, the Supreme Court made everything so much clearer in Booker by rendering the guidelines advisory. Thanks guys.

So I guess we shouldn’t be that surprised when a federal judge in Florida decides that, yep, 17-1/2 years is plenty for some misanthrope who serially terrorized young children.

William Irey pleaded guilty to one count of going overseas to create and transport child pornography. The charge related to his rape and torture of fifty or more little girls — some as young as four years of age — over a five-year period.

The nature of Irey’s crimes resulted in an adjusted offense level that ordinarily would have led to an advisory guidelines range of life imprisonment.

But because the government charged all of Irey’s crimes in just one count, his maximum under the guidelines was 30 years.

Fortunately for Irey, the district court decided that 30 years was too much.

Yes, the judge decided that pedophilia was an “illness” that had impaired Irey’s volition.

Since Irey was a “victim” of his illness, the judge saw fit to deviate downward from the 30-year guidelines range and imposed a sentence of only 17-1/2 years.

Well, most of the judges on the 11th Circuit saw that Irey’s sentence was a matter of justice going off the rails, so the en banc court decided — with heated dissent — that Irey should get the 30-year maximum allowed under the circumstances.

“[W]e recognize that our substantive review of sentences is deferential and that we only look to see if the district court abused its discretion by committing a clear error in judgment. Even so, the sentence in this case can withstand review only if deference amounts to abdication, if sentencing discretion is unbridled, and if ‘unreasonable’ is a hollow term.

“The sentence that the district court imposed is a clear error in judgment, a mistake, and it is our responsibility to ‘correct such mistakes when they occur,’” wrote Judge Ed Carnes for the majority. (U.S. v. Irey)

It took 142 pages for Judge Carnes to explain why Irey’s sentence was unreasonable and contrary to the sentencing guidelines.

I was pretty much convinced after two paragraphs.

But even 142 pages of explanation wasn’t enough for the court’s dissenting judges.

Judge Gerald Tjoflat understood that Irey’s sentence was wrong. He just didn’t like the court stepping in and ordering a 30-year maximum rather than allowing the district judge the opportunity to redo Irey’s sentence.

“Today, the court needlessly assumes the role of resentencer,” Tjoflat wrote. “In so doing, it cements this circuit’s answer to a question that continues to vex the nation’s courts of appeals: after Booker, what does appellate review of sentences for substantive “reasonableness” under an abuse of discretion standard mean?

“The correct answer ... is to apply classic abuse of discretion review. The court’s answer is shocking: a simple objection that a sentence is ‘unreasonable’ grants a disappointed party the functional equivalent of a new sentencing hearing before the court of appeals.”

The judge proceeded to complain that “[t]oday’s decision sends the unmistakable message that the district court is nothing but a tryout on the road.”

Judge J.L. Edmondson, joined by three other judges, dissented from the majority’s decision to vacate Irey’s sentence in the first instance.

Edmondson plainly thought that the majority had overstepped its authority in reviewing Irey’s sentence.

“The issue is not whether federal appellate judges ought to do their duty. They must. And the issue is not whether appellate courts can review sentences and sometimes correctly set them aside, even when the sentence was imposed without procedural errors. They can.

“Appellate judges do have some legitimate power to review the substance of sentences: that is, to determine whether a District Judge has imposed a sentence that is either too lenient or too harsh as a matter of law. The general question presented here is what is the limit, under the law, on the power of appellate judges in deciding such reviews,” the judge wrote.

Judge Edmondson concluded that the facts of Irey’s case supported the reasonableness of his sentence.

“That this serious crime deserves a substantial term of imprisonment is beyond debate (and, in reality, has never been debated). I trust that most American judges (I hope all of them) would accept that 17.5 years of imprisonment is a substantial term of imprisonment,” the judge said. “And it 5 is years beyond the statutory minimum sentence for the only crime with which Defendant was charged.”

Summing up his position, the Judge Edmondson explained that “it is jurisprudentially important to steer clear of de novo review, or something resembling it, in an appeal about the substantive-reasonableness of a sentence.”

With all due respect to Judge Edmondson, someone needs to tap him on the shoulder and explain that there’s a real world out here.

A guy like Irey should never again see the light of day.