Criminal – No error in child pornography sentence

During the sentencing of a defendant for production and possession of child pornography, the judge’s reference to the possible impact of good-time credits on the length of the sentence was not inappropriate. Moreover, the 40-year sentence was not substantively unreasonable.

Background

John Michael Fowler argues that the district judge erred by mentioning the possible impact of good-time credits, and inaccurately calculating the potential impact of such credits, when sentencing him for the production and possession of child pornography. Fowler also argues that his final sentence was longer than needed to serve the proper purposes of sentencing.

Good-time credits

On appeal, Fowler argues for the first time that the district judge erred during sentencing by considering the possibility he might earn good-time credits. Specifically, Fowler contends that good-time credits are an improper sentencing consideration because they do not fall under any § 3553(a) factors and because their consideration undermines Congress’s sentencing regime.

Fowler fails on the first prong of plain error review, as the district judge committed no error. During sentencing, the judge acknowledged what everyone knew: once in prison, Fowler might receive good-time credits entitling him to earlier release. Every one of the judge’s many considerations, including good-time credits, fell under § 3553(a) factors that he was required to consider in determining a just sentence.

The district judge concluded that under a 40-year sentence, Fowler would “perhaps” be released “in the vicinity of his 60th birthday” if he earned good-time credits. This sentence struck the judge’s desired balance: it in no way made light of Fowler’s heinous conduct, but it was not life equivalent. Sentencing is supposed to embody just this sort of balance. And appellate courts are advised not to disturb it.

Finally, the district judge did not undermine Congress’s intent with respect to good-time credits. Good-time credits are administered by the Bureau of Prisons to “reward[] and reinforce[]” good behavior by prisoners. The district judge never intruded on this authority. He did not assume that Fowler would earn good-time credits or attempt to dictate to the Bureau of Prisons how many credits to award. Rather, he said that “perhaps” Fowler would earn good-time credits, and that the decision was “up to the Bureau of Prisons. I can’t control that.” We find that formulation unexceptionable.

Substantively unreasonable

Fowler next argues that his sentence of 40-years’ imprisonment was substantively unreasonable because it was longer than necessary to serve the purposes of sentencing. Specifically, he alleges that the district judge reached an unreasonably long sentence after overweighing one factor, protection of the public, while underweighing others, including his mental health issues, difficult childhood and the need to avoid unwarranted sentencing disparities.

This argument is easily answered. In light of the foregoing discussion, it should be clear that the district court conducted a procedurally thorough hearing, the result of which was to arrive at a substantively reasonable sentence. To put it mildly, there was nothing remotely unreasonable about Fowler’s sentence.

Affirmed.

United States v. Fowler (Lawyers Weekly No. 001-018-20, 17 pp.) (J. Harvie Wilkinson III, J.) Case No. 18-4755. Jan. 27, 2020. From D. Md. (Richard D. Bennett, J.) Cullen Oakes Macbeth for Appellant, Daniel Alan Loveland Jr. for Appellee.