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No Sentencing Guidelines Departure for Military Service

By Robyn Hagan Cain on December 14, 2011 | Last updated on March 21, 2019

Military service might serve as a get-out-of-jail early, if not free, card for a number of minor crimes, but it won't guarantee a defendant a Sentencing Guidelines departure for child pornography possession.

The Sixth Circuit Court of Appeals ruled this week that a district court did not abuse its discretion in sentencing a child pornography offender to the most lenient prison term under the Sentencing Guidelines because, despite the defendant's assertions to the contrary, the punishment was substantively reasonable.

Patrick Reilly pleaded guilty to two counts of distribution of child pornography and was sentenced to 151 months in custody. In his presentencing memorandum, Reilly moved for a Sentencing Guidelines departure and variance based on his "extraordinary" military contributions.

During his decade of service in the Army, Reilly was deployed on three combat tours as an improvised explosive device (IED) inspector in Iraq and Afghanistan, during which he sustained repeated concussions from IEDs. His final tour was cut short by an IED that fractured his back, necessitating surgery.

At his sentencing hearing, a psychologist testified that Reilly had sustained organic brain injury while in the service, which, combined with his pain medications, led to his interest in child pornography.

The district court denied Reilly's motion for a downward departure and variance, but sentenced him to the most lenient sentence under the Sentencing Guidelines.

A sentence is substantively unreasonable when the district court selects the sentence arbitrarily, bases the sentence on impermissible factors, fails to consider pertinent statutory factors or gives an unreasonable amount of weight to any pertinent factor.

Here, the Sixth Circuit Court of Appeals found that Reilly's sentence was substantively reasonable.

While the court noted that Reilly did not have a criminal history, and his injury may have contributed to his criminal misconduct here, it did not change the fact that he downloaded more than 1,000 images and videos containing child pornography, exchanged child pornography with nearly 50 people, told a woman to watch the videos with a child to groom the child for sexual activity, and made plans to shift from viewer to active participant in child pornography when he planned to videotape himself sexually abusing the child.

Nearly 5,500 U.S. soldiers were injured in Afghanistan alone in 2010. Though injured soldiers may suffer lasting mental damage from their war-time injuries, the Sixth Circuit Court of Appeals will not automatically employ those injuries as grounds for a Sentencing Guidelines departure.

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