Menu icon Access the Business Officer Magazine menu by clicking or touching here.
Colorado Lawyer Magazine logo, click or touch this logo to return to the homepage Click or touch the Colorado Lawyer Magazine logo to return to the homepage. Search

United States v. Biggs Farley.

No. 21-8013. D.Wyo. Judge Ebel. Reasonableness of Sentence—Sentencing Guidelines—Plain Error Review.

June 15, 2022

Defendant was indicted for production, distribution, and possession of child pornography under 18 USC § 2251(a). He submitted a plea agreement whereby he would plead guilty to three of the charged counts of producing child pornography and, in exchange for the plea, the government would agree to a stipulated sentence of 20 to 40 years’ imprisonment. Based on offense levels derived from the presentence investigation report (PSR), the US Sentencing Guidelines’ range was life in prison. However, the statutory maximum for any single conviction under 18 USC § 2251 is 30 years. The PSR therefore recommended a sentence of 30 years on each count to be run consecutively.

At the sentencing hearing, neither party objected to the PSR’s calculations, but both parties argued in favor of the plea agreement’s lesser stipulated sentence, noting certain mitigating factors, including defendant’s history of mental illness, sexual and physical abuse, youth, cooperation with authorities, and lack of similar criminal history. Following the parties’ presentations, the district court said it would reject the plea agreement’s stipulated sentence. After a discussion among defense counsel, the government, and the judge in chambers, the hearing reconvened and defendant indicated he would proceed with sentencing despite rejection of the plea agreement. The district court set the sentence at 630 months’ imprisonment, calculated by a term of 210 months per count, to be served consecutively.

Defendant argued on appeal that the sentence was both substantively and procedurally unreasonable. The Tenth Circuit only reached the procedural unreasonableness claims, which were that (1) the district court misinterpreted the law when it stated it was following the spirit of congressional statutes by applying consecutive sentences, and (2) the court relied on a misunderstanding of the sentencing guidelines in varying downward. As to the first, the district court’s decision to run defendant’s terms of imprisonment consecutively was made within the court’s sentencing discretion to give full respect to each of the three victims involved in the respective counts. As to the second, however, the court erroneously stated that accepting the government’s recommended sentence would require a multiple level downward departure from the PSR recommendation under the sentencing guidelines. In reality, the court would have had to vary downward only one offense level, from 43 to 42. Relying on the guidelines table, the court could have imposed a 40-year sentence by varying down one level and running the sentences concurrently. Accordingly, the district court plainly erred by using an unreasonable method to determine the sentence it would apply to each count. Further, the error acted as a limiting factor in how low the court was willing to go with the sentence, and there was thus a reasonable probability that the court would have opted for a sentence below 630 months had it used a reasonable methodology. This procedural unreasonableness affected the fairness, integrity, or public reputation of judicial proceedings, so the district court plainly erred.

The sentencing order was reversed and the case was remanded for resentencing.

Official US Court of Appeals for the Tenth Circuit proceedings can be found at the US Court of Appeals for the Tenth Circuit website.

Back to the From the Courts Page