Whether the discretion recognized under Kimbrough v. United States for a district court to vary based on a policy disagreement applies to the child pornography guidelines

QUESTIONS PRESENTED Though Congress established the United States Sentencing Commission to develop sentencing guidelines, Congress has all but dictated the child pornography guidelines. Because the Commission has determined that the corresponding congressional directives are outmoded and disproportionate, the Commission has “effectively disavowed” these guidelines and invited district courts to vary from them. United States v. Jenkins, 854 F.3d 181, 189-90 (2d Cir. 2017). District courts across the country are doing just that, varying in 63% of child pornography cases. A division among the appeals courts has followed as to the scope of a district court’s discretion to vary from these guidelines. Appeals courts reviewing these and other sentencing decisions also are diverging as to how to check a sentence for substantive reasonableness. This petition raises both conflicts. The questions presented are: (1) Whether the discretion recognized under Kimbrough v. United States for a district court to vary based on a policy disagreement applies to the child pornography guidelines, as held by the Second, Third, and Ninth Circuits, or whether that discretion is limited or foreclosed altogether, as held by the Fifth, Sixth, and Eleventh Circuits. (2) Whether substantive reasonableness review under Gall v. United States requires an appeals court to reassess the relative weight assigned by the district court to each of the 18 U.S.C. § 3553(a) factors, as held by the Sixth and Eleventh Circuits, or whether such reweighing is impermissible, as held by the First, Second, and Tenth Circuits.