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Third Circuit Overturns Below-Guideline Sentence as Too High

Yesterday the Third Circuit issued a remarkable decision in US v. Olhovsky (available here), accepting the defendant’s arguments that his 6-year sentence was unreasonably high, even though it was 4 years below the minimum guideline term.

Olhovsky was convicted of possessing child pornography. There were very unique circumstances surrounding his offense. At the time of his arrest, Olhovsky was only 18. He suffers from unique physical and mental problems. The counselor who worked with Olhovsky during his pretrial release wrote an unsolicited letter, noting that Olhovsky had made remarkable gains during treatment, that he did not fit the typical profile of a pedofile, and that a sentence of incarceration would be detrimental to Olhovsky’s physical and mental well-being.

Prior to sentencing, the district court denied Olhovsky’s motion to subpoena the counselor to testify at sentencing. The court claimed that a subpoena for “expert” testimony was inappropriate. The counselor refused to appear voluntarily because his contract with U.S. probation prohibited him from appearing in court without a subpoena.

At sentencing the defense presented two forensic psychologists who testified favorably for Mr. Olhovsky. The government also submitted a 3-page letter from an additional expert, stating that based upon his review of Olhovsky’s records and the photographs at issue in this case, the chances for successful rehabilitation were slim.

At the conclusion of the sentencing hearing, the court imposed a below-guideline sentence of 6 years, based upon Olhovsky’s young age. However, the court refused Olhovsky’s request for probation, citing the heinous nature of the pictures in Olhovsky’s possession and what the district court believed were Olhovsky’s dim prospects for successful treatment.

The Third circuit Panel (which included 9th Cir. Judge Wallace Tashima, sitting by designation), held that the lower court’s sentencing decision was unreasonable. There was no to deny the subpoena. Had Olhovsky’s counselor been able to testify he may have disabused the district court of its belief that Olhovsky was not likely to succeed in treatment. Furthermore, the 6-year sentence was substantively unreasonable because the district court did not sufficiently account for all the factors under 18 U.S.C. § 3553, including the “parsimony provision,” which requires that a sentence be sufficient but not greater than necessary to meet the goals of punishment. The court cited to precedent in the social security context, indicating that a treating physician’s opinions about an individual’s prognosis should be given greater weight than other experts. Because the lower court focused too much on the nature of the photographs and not Mr. Olhovsky’s individual circumstances, including his vulnerability in prison and potential for success, the 6-year sentence was unreasonably high.

Olhovsky appears to be the first appellate case, post-Booker, to hold that a below-guideline sentence was unreasonably high. Although the facts in Olhovsky are unique, the court’s analysis is very helpful and should be reviewed by anyone preparing arguments for a below-guideline sentence.