Autery
United States v. Autery
Opinion
Opinion
Karin J. Immergut and Gregory R. Nyhus, District of Oregon United States Attorney's Office, Portland, OR, for the plaintiff-appellant.
Wayne Mackeson, Portland, OR, for the defendant-appellee.
Before: DAVID R. THOMPSON, A. WALLACE TASHIMA, and MILAN D. SMITH, JR., Circuit Judges.
Opinion by Judge MILAN D. SMITH, JR.; Dissent by Judge TASHIMA.
MILAN D. SMITH, JR., Circuit Judge:
Defendant-Appellee Jim Bryan Autery pled guilty to possession of child pornography and entered into a plea bargain that called for the imposition of a forty-one to fifty-one month prison sentence pursuant to the United States Sentencing Guidelines. The district court deviated from the Guidelines and imposed a sentence of five years probation. The government did not object to the sentence when the district court imposed it, but now appeals, arguing that the sentence is substantively unreasonable.
We hold that the appropriate standard of review under the circumstances of this case is abuse of discretion. Reviewing the sentence under that standard, we affirm.
Based on evidence obtained in a U.S. Postal Service and Immigration and Customs Enforcement sting operation, Autery was indicted in September 2006…
dissent Opinion
Tashima, J.
dissenting:
Defendant Autery pled guilty to one count of possession of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B) pursuant to a plea agreement. In the plea agreement, the parties agreed to a presumptive sentence of 41-51 months’ imprisonment, which was the applicable range under the U.S. Sentencing Guidelines. Notwithstanding that agreement, the district court departed downward at least 14 levels and imposed a sentence of five years’ probation. The government appeals. Because I agree with the government that the sentence is unreasonable under 18 U.S.C. § 3553 (a), I respectfully dissent. 1
When the Supreme Court in Gall v. United States, — U.S. -, 128 S.Ct. *879 586 , 169 L.Ed.2d 445 (2007), held that departures from the Sentencing Guidelines could be reviewed only for abuse of discretion, the Court did not intend to insulate district judges from “meaningful appellate review 5 ’ of the sentences they impose. Id. at 597 . Yet the majority has interpreted Gall , along with United States v. Carty, 520 F.3d 984 (9th Cir.2008) (en banc), as requiring appellate courts to adopt a posture so deferential that, so long as the district court facially applies the relevant…
lead Opinion
Smith, J.
Opinion by Judge MILAN D. SMITH, JR.; Dissent by Judge TASHIMA.
Defendant-Appellee Jim Bryan Autery pled guilty to possession of child pornography and entered into a plea bargain that called for the imposition of a forty-one to fifty-one month prison sentence pursuant to the United States Sentencing Guidelines. The district court deviated from the Guidelines and imposed a sentence of five years probation. The government did not object to the sentence when the district court imposed it, but now appeals, arguing that the sentence is substantively unreasonable.
We hold that the appropriate standard of review under the circumstances of this case is abuse of discretion. Reviewing the sentence under that standard, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Based on evidence obtained in a U.S. Postal Service and Immigration and Customs Enforcement sting operation, Autery was indicted in September 2006 on two counts of attempted receipt of child pornography, one count of possession of child pornography, and a forfeiture allegation. Following Autery’s arrest, federal agents found at least 150 images of child pornography 1 stored in Autery’s personal computers.