Golden Gate University Law Review


Sarah Einhorn

Article Title

United States v. Henderson: Child Pornography Sentencing Guidelines Subject to Challenge on Public Policy Grounds


The 1984 Sentencing Reform Act replaced the traditional judicial discretion model of sentencing with an administrative system to be overseen by the United States Sentencing Commission. The Sentencing Commission was charged with developing a system of sentencing that would promote uniformity and predictability. The result of this work was the Federal Sentencing Guidelines (U.S.S.G.), implemented in 1987. Each guideline provides a base offense level for a particular crime, represented by a number that corresponds on the Sentencing Table to an amount of time, calculated in months, that a defendant will face in federal prison for that crime. The Guidelines also provide specific offense characteristics that will adjust the base offense level up or down, adding or subtracting time from the defendant’s recommended sentence. Adjustments may also be made according to other factors, provided for in 18 U.S.C. § 3553(a), which include the nature and circumstances of the offense, to ensure that a sentence imposed on a particular defendant reflects the purposes of sentencing set forth in the Guidelines. Initially, these Guidelines were mandatory. However, in 2005, the U.S. Supreme Court severed portions of the Act and rendered the Guidelines merely advisory. Thus, while a court must use the Guidelines as the initial benchmark, it may choose to implement another sentence that is more tailored to the defendant in a particular case.

However, in United States v. Kimbrough, the Supreme Court identified circumstances in which a district court may vary from the Guidelines, not merely on the facts of a particular case, but on the public policy position that the Guideline recommendation of a particular offense will not serve the purposes of sentencing. Such circumstances arise when the Sentencing Commission has not developed a Guideline sentencing recommendation in a manner exemplifying the Commission’s purported purpose. Recently, the U.S. Court of Appeals for the Ninth Circuit adopted this reasoning in United States v. Henderson.

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