Judge criticizes federal sentencing guidelines in pornography case

A federal judge in Denver has sentenced a man convicted of a child pornography charge to the mandatory minimum 10 years in prison while criticizing the rigidity of the federal sentencing guidelines that he says prevented him from giving a more appropriate, shorter sentence.

U.S. District Court Senior Judge John Kane also sentenced Shawn Cheever, 45, to 15 years of supervision following his prison release.

Cheever’s attorney, public defender Scott Varholak, filed a sentencing appeal Monday, according to court records in U.S. District Court in Denver. Varholak could not be reached for comment Tuesday.

Kane issued a 40-page sentencing opinion that says the federally-imposed sentencing guidelines for child pornography possession cases are greater than necessary, Kane’s opinion states.

Kane wrote in his opinion that his extensive research on the history of the child Sexual Abuse Protection Act of 1994 found that there were no studies, statistics, or basis to explain or justify why the mandatory minimum of 10 years was enacted or whether any other term was considered.

A sentence of five years — “if permitted” — would allow Cheever to participate in programs within the U.S. Bureau of Prisons and ensure his safe release with a minimum risk of recidivism, the judge’s motion says. He added that completing the bureau’s two sex offender programs that includes therapy and work would take 21/2 years.

Cheever downloaded four child pornographic pictures in June of 2014. The FBI examined his computer and found 172 child pornography images including images portraying sadistic or masochistic conduct and other violent depictions, Kane’s motion explains. Cheever admitted he viewed the pornography whenever he used methamphetamine.

“Suffice to say they are lurid and graphic images of young children, boys and girls, involved in demeaning sexual poses and activities,” Kane wrote. Cheever also had a lengthy criminal history including a misdemeanor conviction for possessing child pornography and he failed to obtain treatment as required, Kane wrote.

Mandatory minimum sentences remove the balance between protecting and punishing the guilty versus affording every human being their dignity, Kane wrote.

“The result is a punishment without any expression of rational justification,” Kane wrote. He added that the 10-year mandatory minimum sentence he gave Cheever preempted his ability to give him a sentence that is not greater than necessary.

Kane noted that while Cheever’s criminal record suggests that the risk of recidivism is high, his best chance for success is to receive treatment.

He ordered that Cheever receive both drug and sex offender treatment in prison.

 

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