Wednesday, January 2, 2008

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The 4th U.S. Circuit Court of Appeals affirmed last week a downward departure for a sentence that it likely would have found unreasonable before the U.S. Supreme Court’s rulings in Gall v. U.S. and Kimbrough v. U.S. on Dec. 10.

Larry Pauley was convicted of one count of possessing child pornography and acknowledged that his guidelines’ sentencing range was 78 to 97 months in prison.

However, U.S. District Judge John T. Copenhaver Jr. of Charleston, W.Va., sentenced him to only 42 months and the government appealed. Pauley, who had been an arts teacher in St. Albans, W.Va., admitted that he had paid a student for nude photographs of herself after the girl had offered to sell them to him. She was in the eighth and ninth grades when the photos were taken.

Copenhaver cited several factors in justifying the departure: the girl instigated the transactions, fewer than two dozen photos were taken with a Polaroid camera and the victim’s face did not appear in any of them, and Pauley was extremely remorseful and otherwise a model citizen who lost his teaching certificate and state pension as a result of the conviction. A search of his home disclosed no other child pornography.

Writing for the 4th Circuit panel in U.S. v. Pauley, Chief Judge Karen J. Williams said Gall and Kimbrough required affirmance of the sentence. “[C]onsidering all of the factors that the district court viewed as mitigating in their totality, we hold that the thirty-six month downward departure was supported by justifications necessary to uphold the sentence,” she said.

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