US v. Whorley - 4th Circuit
In U.S. v. Whorley, the 4th Circuit Court of Appeals affirmed a substantial upward variance to 240 months in a child porn case (the government filed a motion seeking an upward departure of 262 to 327 months’ imprisonment; the guidelines range was 87 to 109 months’ imprisonment but the statute provided for a mandatory minimum of 180 months' imprisonment), citing Gall v. United States, showing again that Gall is a two-edged sword, permitting courts leeway in departing upwards from the sentencing guidelines as well as downwards:
The district court’s consideration of Whorley’s sentence in this case was thorough, and the sentence it imposed was amply supported by the facts and by legally appropriate considerations. In these circumstances, we cannot agree with Whorley that the district court abused its discretion and acted unreasonably.In Gall v. United States, 128 S. Ct. 586 (2007), the Supreme Court repeatedly instructed that appellate courts defer in these circumstances. With respect to a departure or variance sentence, such as before us, the Court stated:
[The appellate court] may consider the extent of the deviation, but must give due deference to the district court’s decision that the § 3553(a) factors, on a whole, justify the extent of the variance. The fact that the appellate court might reasonably have concluded that a different sentence was appropriate is insufficient to justify reversal of the district court.Gall, 128 S. Ct. at 597. Repeating these instructions, the Court stated:
But it is not for the Court of Appeals to decide de novo whether the justification for a variance is sufficient or the sentence reasonable. On abuse-of discretion review, the Court of Appeals should have given due deference to the District Court’s reasoned and reasonable decision that the § 3553(a) factors, on the whole, justified the sentence.UNITED STATES v. WHORLEY 25 Id. at 602. See also United States v. Pauley, 511 F.3d 468, 473-74 (4th Cir. 2007). In following these instructions, we have affirmed departures encompassing the range involved here. See, e.g., United States v. Evans, 526 F.3d 155, 161-66 (4th Cir. 2008) (affirming a 316% upward variance); United States v. Curry, 523 F.3d 436, 439-41 (4th Cir. 2008) (affirming a 13% downward departure); Pauley, 511 F.3d at 474-76 (affirming a 46% downward departure). In Evans, we noted, "We recognize that the sentence [constituting a 316% variance] imposed on Evans may not be the only reasonable sentence, but it is a reasonable sentence, and the Supreme Court [in Gall] has directed that any reasonable sentence be upheld." 526 F.3d at 166.
In this case, we are presented with no procedural or substantive errors in the district court’s determination that the goals of federal sentencing were best served by the 240- month sentence, and therefore we conclude that the sentence was not unreasonable.
The Court also rejected Whorley's claims that
1) § 1462 is facially unconstitutional in prohibiting receipt of obscene materials because receiving materials is an incident of their possession, and possession of obscene materials is protected by the holding of Stanley v. Georgia, 394 U.S. 557 (1969); (2) that § 1462 is facially unconstitutional because the term "receives," when used in the context of a computer, is unconstitutionally vague; (3) that § 1462 is unconstitutional as applied to text-only e-mails, arguing that text alone cannot be obscene; and (4) that § 1466A(a)(1) is unconstitutional under the First Amendment, as applied to cartoons, because cartoons do not depict actual minors.
