Marginal Deterrence as Part of the Booker Calculation

United States v. Ernest Newsom, Case No. 03-3366 (04/01/2005): The Court ordered a limited remand under Paladino. Nonetheless, it dealt with the defendant’s arguments about the calculation of the sentencing guidelines (which it found basically correct). Hence, on remand, the district court has the advantage of knowing the guidelines range and can proceed to the question of what sentence should be given under guidelines that are now advisory.

At the very end of the opinion, the Court made a suggestion about the possible sentence. The defendant was sentenced to 27 years in prison for the possession (and production) of child pornography. The Court invoked the concept of "marginal deterrence" ; that is, the harshest sentences should be reserved for the most culpable behavior. It remarked that a sentence of 27 years might leave little room for additional punishment for those defendants who commit more aggravated offenses, such as offenses involving physical abuse of the victim. On remand, the district judge, considering all the factors in 18 U.S.C. §3553(a), may conclude that a sentence lower than the guidelines sentence would be appropriate.