Being charged with possession or manufacture of child pornography is one of the most serious federal crimes in terms of sentencing. If you are convicted of possession of child pornography, there is a five-year mandatory minimum sentence. In other words, upon conviction, you will spend at least five years in a federal penitentiary. If you are convicted of manufacturing child pornography, there is a mandatory minimum of 15 years in prison.
In, United States v. Paladino, defendant unknowingly arranged to meet an undercover officer to obtain pornographic videos featuring young boys, after responding to an Internet advertisement. After several email exchanges, defendant went to pick up the package from the undercover agent. At that point, authorities attempted to arrest defendant, but he fled and led them on a high-speed chase. During the chase, he struck several cars and threw away the package. He was eventually apprehended.
In a search of his home pursuant to a warrant, police found videos and computer files containing over 5,000 images depicting child pornography. He pleaded guilty to one count of distributing material depicting the sexual exploitation of a minor, in violation of 18 U.S.C. §2252(a)(1).
As our Birmingham lawyers who represent people charged with possession of child pornography can explain, federal plea agreements typically require defendant waive his right to appeal conviction.
In Paladino, defendant signed such a waiver when he took his plea and was sentenced to 10 years in prison followed by a 10-year period of supervised release. In federal prison, as there is no longer parole, inmates must serve their entire sentence minus 54 days per year in credit for “good time” and then are granted supervised release. Supervised release is essentially the same as being on parole.
Two years later, he filed an appeal, but that appeal was denied pursuant to his agreement not to file an appeal when he took the plea deal. After he had served his entire sentence minus the credit for good time, he was granted supervised release from prison.
After being released, his probation officer filed a motion to revoke his release, on grounds that he had associated with persons convicted of a felony, which is a violation of the terms of supervised release. He also claimed that defendant had failed to participate in metal health treatment for sex offenders.
At the revocation hearing, his attorney was asked if defendant challenged the allegations. His attorney said his client challenged the claim that he failed to attend treatment. The court also asked counsel if they agreed on a resentencing, and the attorneys indicated that eight months followed by another 10 years of supervised release was appropriate. The court then asked defendant if he understood the terms, and he said that he did.
Defendant appealed this sentence, because the court did not address the defendant to ask if he wished to be heard prior to resentencing.
On appeal, the court held that this was a serious error, as the court is required to unambiguously address the defendant and ask if he or she wishes to be heard prior to being sentenced.
United States v. Paladino, October 8, 2014, United States Court of Appeals for the Third Circuit