The Coming Age of Artificial Intelligence: What Lawyers Should Be Thinking About

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by José P. Sierra

The Profession

During the Spring and Fall legal conference seasons, emails addressing “data breaches,” “improving cyber defenses,” and “what you (or your general counsel/board) need to know about cyber security/insurance,” hit our inboxes on an almost weekly basis.  Although it took some time, everybody now wants a slice of hot “cyber” pie, and law firms have been quick to jump on the cyber security bandwagon and form cyber-practices.  What hasn’t gotten the same rapt attention of conference organizers, tech vendors, and the legal community is the coming age of artificial intelligence, or “AI.”  There are at least two reasons for this.  First, although large-scale deployment of self-driving cars is just over the horizon, most of the bigger, life-changing AI products are still years away. Second, most laypeople (including lawyers) do not understand what AI is or appreciate the enormous impact that AI technology will have on the economy and society.  As a result, those in the “vendor” community (which includes lawyers) have yet to determine how their clients and their clients’ industries will be affected, and how they themselves can profit from the AI revolution.

AI and What It Will Mean for Everyone

AI may be defined as a machine or super computer that can simulate human intelligence by acquiring and adding new content to its memory, learning from and correcting its prior mistakes, and even enhancing its own architecture, so that it can continue to add content and learn.  A few years ago, AI development and its celebrated successes were limited to machines out-playing humans in games like chess (e.g., IBM’s Watson beating world chess champion Gary Kasparov and winning on the show, Jeopardy).  And while most of us are now familiar with “intelligent” assistants like “Siri,” “Alexa,” and other “smart” devices, for the average person, the full import of AI’s capabilities and potential hasn’t been grasped (though the advent of autonomous cars has given us some glimpse of things to come).

Already, AI can do many things that people can do (and in some cases better).  In addition to driving cars, AI can detect and eliminate credit card payment fraud before it happens, trade stocks, file insurance claims, discover new uses for existing drugs, and detect specific types of cancer.  Then there is the work that most people think can be done only by humans, but which AI can do today, including: (1) predicting the outcome of human rights trials in the European Court of Human Rights (with 79% accuracy); (2) doing legal work  –  numerous law firms have “hired” IBM’s Ross to handle a variety of legal tasks, including bankruptcy work, M&A due diligence, contracts review, etc.; and, more disturbing than possibly replacing lawyers, (3) engaging in artistic/creative activities, like oil canvas painting, poetry, music composition, and screenplay writing.  In short, almost no realm of human endeavor – manual, intellectual, or artistic – will be unaffected by AI.

What AI Will Mean for Lawyers

Some legal futurists think that AI simply will mean fewer jobs for lawyers, as “law-bots” begin to take over basic tasks.  Other analysts focus on the productivity and cost-savings potential that AI technology will provide.  Two other considerations of the impending AI revolution merit discussion:  revenue opportunities and the role lawyers can and should play in shaping AI’s future.

How AI May Shape the Legal Economy                 

Some of the most profitable practice areas in an AI-driven economy are likely to be:

  • Patent Prosecution and Litigation. This one should be obvious and already has taken off.  Fortunes will be made or broken based on which companies can secure and defend the IP for the best AI technologies.
  • M&A. Promising AI start-ups with good IP will become targets for acquisition by tech-giants and other large corporations that want to dominate the 21st century economy.
  • Antitrust. Imagine that Uber, once it has gone driverless, decides to buy Greyhound and then merges with Maersk or DHL shipping, which then merges with United Airlines.  How markets are (re)defined in an AI-driven economy should keep the antitrust bar very busy.
  • Labor and Employment. AI technology has the potential to disrupt and replace human labor on a large-scale.  To take just one example, in an AI-created driverless world, millions of car, taxi, bus, and truck drivers will find themselves out of work.  What rights will American workers have when AI claims their jobs?  How will unions and professional organizations protect their members against possible long-term unemployment?  Labor and employment lawyers will be at the forefront of labor re-alignment issues.
  • Tax. If AI reduces the human labor pool, as expected, and there is a corresponding loss in tax revenue, the tax code will most likely need to be revised, which will mean new strategies for the tax bar.
  • Cyber-law/compliance. The importance of protecting IP, proprietary, and confidential information, and the legal exposure of not doing so, will be even greater in the higher-stakes world of AI.
  • Criminal Defense. Will AI help law enforcement solve crimes?  Will AI be used to commit crimes?  If so, both prosecutors and the defense bar will be busy prosecuting and representing more than the typical criminal defendant.

How Lawyers May Help Shape AI

Is there a role for the legal profession in the coming AI age other than helping our clients adapt to a “brave new world?” In my view, lawyers should play a necessary and leading role.  For if AI has the potential to affect every industry and occupation and permanently eliminate jobs along the way, society’s leaders cannot afford to leave the decisions about which AI technologies will be developed in what industries (and which ones won’t) to sheer market forces.  Private industry and investors are currently making these decisions based on one overarching criterion — profit — which means everything is on the table.  Although that approach propelled the industrial and digital revolutions of the last two centuries, jobs lost by those revolutions were eventually replaced by higher-skilled jobs.  For example, teamsters of horse-powered wagons were replaced by modern teamsters, i.e., truck drivers.  That won’t be the case following an AI revolution.  The ultimate question, therefore, in the coming AI century is what areas of human endeavor do we, as a society, want to keep in human hands, even if such endeavors can be accomplished faster, cheaper, and better by AI machines?  As the profession responsible for protecting society’s interests through law and policy, lawyers cannot afford to take a back seat to the free-for-all development of AI, but instead must lead and help shape the AI century to come.

José P. Sierra is partner at Holland & Knight. He focuses his practice in the areas of white collar criminal defense, healthcare fraud and abuse, pharmaceutical and healthcare compliance, and business litigation.


Massachusetts Leads The Nation On The Attorney-Client Privilege For Law Firms

by Robert M. Buchanan, Jr.

Case Focus

BuchananThe Supreme Judicial Court of Massachusetts has taken intellectual leadership on an issue of nationwide importance for the legal profession.  RFF v. Burns & Levinson, 465 Mass. 702, 703 (July 2013) addressed “whether confidential communications between law firm attorneys and a law firm’s in-house counsel … are protected from disclosure to the client by the attorney-client privilege.”  The SJC ruled firmly that the privilege does apply the first time this issue has been resolved by the highest court in any jurisdiction.

Examples Of The Issue In Practice

The Boston Bar Association filed an amicus brief in the RFF case.  We provided several practical examples of how in-house counsel function in law firms.

Example 1:  Law Firm represents Client A and also represents Client B.  Client B calls Lawyer asking for urgent advice about an affiliate of Client A.  Does Lawyer have a conflict of interest?

Example 2:  Lawyer is preparing for a strategy discussion with Client, which is scheduled to begin in a few hours.  Suddenly Lawyer realized that he may have made a technical or strategic mistake.  What should he do?  Does he need to disclose something to Client?

Example 3:  A real estate developer Client sends a letter accusing Law Firm of malpractice, and at the same time insists that Law Firm continue performing work for the developer.  Should Law Firm continue performing work for this Client?

In each of these three scenarios, the lawyer needs guidance; the law firm’s in-house counsel is in the best position to provide guidance; and the client will benefit if the lawyer obtains proper guidance promptly.

The Facts Of The RFF Case

The RFF case was similar to Example 3.  Real estate lawyers received a demand letter from their client, a real estate developer.  The lawyers faced a difficult set of questions.  Should they argue with the client?  Should they continue to represent the client?  How could they do both at the same time?  The lawyers sought advice from their partner who was “designated to respond to ethical questions and risk management issues.”  RFF, 465 Mass. at 704.

The real estate developer later filed a malpractice action and sought to take depositions.  The Business Litigation Session — in a well-reasoned opinion by Judge Billings, dated November 20, 2012 ruled that the attorney-client privilege protected the lawyers from interrogation about their discussion with in-house counsel.

The SJC’s Analysis

The SJC affirmed, stating a logical series of principles, as the BBA had advocated.

1.         Lawyers in law firms often need advice.

Law firms, like corporations, face a vast and complicated array of regulatory legislation, where the line between permissible and prohibited conduct is not always an instinctive matter.

RFF, 465 Mass. at 708-09, quoting Chambliss, The Scope of In-Firm Privilege, 80 Notre Dame L.Rev. 1721, 1756 (2005).

2.         The attorney-client privilege enables in-house counsel to give advice.

Where a law firm designates one or more attorneys to serve as its in-house counsel on ethical, regulatory, and risk management issues that are crucial to the firm’s reputation and financial success, the attorney-client privilege serves the same purpose as it does for corporations or governmental entities:  it guarantees the confidentiality necessary to ensure that the firm’s partners, associates, and staff employees provide the information needed to obtain sound legal advice.

RFF, 465 Mass. at 704-10.

3.         There is no principled reason to reject the privilege.

Lower courts in some other jurisdictions had ruled that the attorney-client privilege does not apply.  These courts have held that the law firm is impaired by a conflict of interest when the firm represents itself adverse to a current client.  The SJC ruled, to the contrary, that the law firm can’t avoid analyzing what to do, and its analysis should be protected by the attorney-client privilege.  Justice Gants stated the critical distinction as follows:

. . .[A] client is entitled to full and fair disclosure of facts that are relevant to the representation, including any bad news, and to sound legal advice from its law firm.  But a client is not entitled to revelation of the law firm’s privileged communications with in-house or outside counsel where those facts were presented and the sound legal advice was formulated.

RFF, 465 Mass. at 716 (emphasis added).

The Privilege Applies If Four Requirements Are Met

The BBA’s amicus brief proposed a three-part test for applying the attorney-client privilege to in-house counsel.  These three requirements were adopted by the SJC in the passage below.  The SJC also added a fourth requirement, confidentiality, which is consistent with them.  The SJC held:

For the privilege to apply, four conditions must be met.  First, the law firm must designate, either formally or informally, an attorney or attorneys within the firm to represent the firm as in-house or ethics counsel, so that there is an attorney-client relationship between the in-house counsel and the firm when the consultation occurs.  Second, where a current outside client has threatened litigation against the law firm, the in-house counsel must not have performed any work on the particular client matter at issue or a substantially related matter….  Third, the time spent by the attorneys in these communications with in-house counsel may not be billed or charged to any outside client….  Fourth, as with all attorney-client communications, they must be made in confidence and kept confidential.

RFF, 465 Mass. at 723 (emphasis added).

Conclusion

All Massachusetts law firms should review these four requirements.  Although the SJC’s holding is not binding outside Massachusetts, its powerful reasoning should be persuasive in other states as well.  In the long run, this analytical clarity should benefit all U.S. law firms and the clients that they serve.

Robert M. Buchanan, Jr. wrote the Boston Bar Association’s amicus brief, pro bono, in the RFF case.  Mr. Buchanan is Chair of the Ethics Committee at Choate Hall & Stewart, where he is a partner in the Litigation Department and leads the Antitrust practice.  


Child Pornography: The New Crack Cocaine?

by Michael J. Pelgro

Legal Analysis 


I.          Introduction

Possession of child pornography now makes up an increasing proportion of the crimes charged in federal district courts.[1]  Hardly a week goes by without a fresh news story concerning a person charged in federal court because his computer contained child pornography images.  As for all federal crimes, sentencing in child pornography cases is influenced by the United States Sentencing Guidelines (“Guidelines”).  The Guidelines were promulgated in November 1987 by the United States Sentencing Commission (“Commission”), a bipartisan agency established by Congress in the Sentencing Reform Act of 1984.  The Commission’s mandate was to construct, and revise annually, mandatory Guidelines encompassing all federal crimes, with a goal of ensuring certainty and fairness, and avoiding unwarranted disparities, in federal criminal sentencing decisions.  In 2005, the Supreme Court decided United States v. Booker, which rendered the Guidelines advisory.  United States v. Booker, 543 U.S. 220, 261-63 (2005).  No longer mandatory, but backed by the Commission’s study and expertise, the Guidelines continue to play a “central role” and provide “gravitational pull” in federal sentencing.[2]  The primary guideline for child pornography cases, §2G2.2, however, has been criticized as “an eccentric Guideline of highly unusual provenance which, unless carefully applied, can easily generate unreasonable results.”  United States v. Dorvee, 616 F.3d 174, 188 (2d Cir. 2010).  This guideline resulted from Congressional dictates, rather than the Commission’s traditional “empirical approach,” an unusual history that has generated widespread judicial and commentator disagreement with the sentencing ranges recommended by this guideline.

The controversy is reminiscent of the longstanding criticism of the 100:1 ratio that Congress used in determining minimum mandatory penalties in cocaine cases.  In the mid-1980s, fueled by the perception that crack cocaine was more addictive and more dangerous than powder cocaine, Congress directed that five-year and ten-year minimum mandatory prison sentences apply to quantities of crack cocaine 100 times less than powder cocaine.  The Commission followed the same proportionality in fashioning the crack cocaine guidelines, thus mandating lengthy federal prison sentences in cases involving small amounts of crack cocaine.  Judicial and commentator backlash against this 100:1 ratio caused the Commission to reassess the fairness of the penalties and the assumptions on which they were based, which in turn led Congress to abandon the 100:1 ratio in the Fair Sentencing Act of 2010, thus allowing the Commission to lower the crack cocaine guidelines.

Now, in a similar groundswell, an increasing number of federal judges are speaking out against the child pornography guideline and, in this post-Booker sentencing era, are refusing to follow its recommended imprisonment ranges.  This backlash is now causing the Commission to study the guideline and the assumptions on which it is based.  These developments suggest that Congressional action may be forthcoming.

II.        The History of the Child Pornography Sentencing Guideline

While the Supreme Court’s landmark Booker decision rendered the Guidelines advisory, the Court has made clear that they remain “the starting point and the initial benchmark” in the federal sentencing process and that they “deserve some weight in the sentencing calculus, as they are ‘the product of careful study based on extensive empirical evidence derived from the review of thousands of individual sentencing decisions.’”[3]  Much time and attention is still devoted in federal court to the proper calibration of the Guideline imprisonment ranges precisely because federal judges continue to give weight to them and often defer to the Commission’s historical expertise in fashioning recommended ranges of imprisonment.

The Commission’s usual empirical approach was not followed, however, in the development of the child pornography guidelines, which were substantively revised to increase penalties nine times in the 22 years following their promulgation in 1987.[4]  The Commission was not allowed to play its traditional institutional role in fashioning recommended imprisonment ranges for such offenses.  Rather, Congress took over the process, “prompting the Commission to respond to multiple public laws that created new child pornography offenses, increased criminal penalties, directly (and uniquely) amended the child pornography guidelines, and required the Commission to consider offender and offense characteristics for the child pornography guidelines.”  Id. at 54.  Courts and commentators have remarked on Congress’s unique exertion of its authority and influence in the development of the child pornography guidelines.  As one commentator put it, the child pornography guidelines were not “the product of an empirically demonstrated need for consistently tougher sentencing” but rather were “largely the consequence of numerous morality earmarks, slipped into larger bills over the last fifteen years, often without notice, debate, or study of any kind.”[5]  The result is a guideline — §2G2.2 — that recommends years of imprisonment for all child pornography defendants, no matter their “history and characteristics” or the “nature and circumstances of the offense.”  18 U.S.C. §3553(a)(1).

A.        The Amendments

When the Guidelines were promulgated in 1987, possession of child pornography was not a federal crime.  Section 2G2.2 encompassed the crimes of transport, distribution, and receipt of child pornography; it set the Base Offense Level (“BOL”) at 13.[6]  The BOL determines the proposed length of a sentence before consideration of any aggravating or mitigating factors.  In November 1990, Congress passed a statute which criminalized possession and directed the Commission to increase penalties for sexual crimes against children.[7]  Thus began a years-long process involving Commission study and proposals to achieve proportionality in punishment and Congressional rejection of the proposals in favor of increased punishment across the board.

In 1991, for example, the Commission proposed setting a lower BOL (10) for the similar crimes of receipt and possession of child pornography.  In response, Congress insisted that the crimes of receipt, transportation, and distribution remain in the same guideline and that the BOL for those crimes be increased.  It also directed the Commission to create a separate guideline for possession (§2G2.4) with a higher BOL (13) than that recommended by the Commission and with an enhancement for possession of 10 or more items.

A similar back-and-forth took place in 1995, when the House of Representatives passed a proposal to increase the BOL to 15 and to add a use-of-computer enhancement for possession offenses.  The amendment, passed over the Commission’s objection, did both.  This enhancement increases the imprisonment range in virtually every child pornography case now prosecuted in federal court.

In 2003, Congress passed the PROTECT Act, directly amending the Guidelines for the first time.  Insertion of the Feeney amendment into the popular Amber Alert bill dramatically changed the child pornography guidelines by creating 5-year minimum mandatory sentences for trafficking and receipt, raising the statutory maximum for possession from 5 to 10 years, and directly amending the possession guideline (§2G2.4) to add an escalating enhancement based on the number of images.[8]  Despite objection by the Commission and others, including a former United States Attorney, the PROTECT Act and the Feeney amendment (which was debated in Congress for just 20 minutes), became law in April 2003.

To remedy the ensuing confusion and harmonize sentences for receipt and possession offenses, the Commission proposed in 2004 consolidating the possession guideline (§2G2.4) with the transport, distribution, and receipt guideline (§2G2.2).  These amendments took effect in November 2004.  Now a single guideline — §2G2.2 — encompasses possession, receipt, and trafficking offenses.

III.       Judicial Reaction To The Child Pornography Guidelines

Courts have recognized that the Congressionally-manipulated guideline has resulted in unusually severe sentences in many child pornography cases. With the flexibility allowed by Booker, courts are giving little or no deference to the child pornography guidelines, concluding that they  do not reflect the Commission’s traditional empirical approach and do not further the sentencing objectives embodied in 18 U.S.C. §3553(a).  Federal judges are giving little or no deference to the child pornography guidelines, relying for support on judicial treatment of the crack cocaine guidelines.

In Kimbrough v. United States, a 2007 crack cocaine case, the Supreme Court reaffirmed Booker and held that a sentencing court has the discretionary authority to disagree with the policy embodied in a guideline if it determines that the guideline’s recommended imprisonment range is “greater than necessary to serve the objectives of sentencing.” Kimbrough v. United States, 552 U.S. 85, 91 (2007)(quoting 18 U.S.C. §3553(a)).  The Court observed that the Commission’s adoption of  the 100:1 crack/powder cocaine sentencing ratio in the drug guideline was based not on empirical research, but on the minimum mandatory sentences dictated by Congress.  Therefore, the Court ruled, a sentencing court may impose a sentence below the guidelines.  Similarly, in Spears v. United States, the Court explained in 2009 that a court may sentence below the crack-cocaine guidelines based solely on a policy disagreement with the guidelines even where a defendant presents no special mitigating circumstances warranting a below-guideline sentence.  Spears v. United States, 555 U.S. 261, 263-64 (2009)(per curiam).

Kimbrough and Spears paved the way for sentencing courts to depart from the guidelines in all cases, providing flexibility to sentence on a more individualized basis.   Courts have, as a result, begun to reject or give little deference to §2G2.2.  In United States v. Dorvee, relying on the unique history of Congressional involvement in amending the child pornography guidelines, the Second Circuit affirmed a below-guideline child pornography sentence, observing that §2G2.2 “is fundamentally different from most and that, unless applied with great care, can lead to unreasonable sentences that are inconsistent with what §3553 requires.”  Dorvee, 616 F.3d at 184.[9]  In United States v. Grober, the Third Circuit affirmed on Kimbrough  grounds a variant child pornography sentence based on the view that §2G2.2 “leads to a sentence that is too severe in a downloading case.”  United States v. Grober, 624 F.3d 592, 596 (3rd Cir. 2010)(quoting United States v. Grober, 595 F.Supp.2d 382, 394 (D. N.J. 2008)).[10]  After reviewing §2G2.2’s history, the Court concluded that “the Commission probably did the best it could under difficult circumstances but to say that the final product is the result of Commission data, study, and experience simply ignores the facts.”  Grober, 624 F.3d at 608 (quoting United States v. Diaz, 720 F.Supp.2d 1039, 1045 (E.D. Wis. 2010)).[11]  While the First Circuit has yet to issue a similar type of opinion, it has observed that Kimbrough  applies to the child pornography guidelines, which  are “harsher than necessary.”  United States v. Stone, 575 F.3d 83, 89-94 (1st Cir. 2009).[12]

Many district courts across the country have similarly opined, expressing variations on the view that §2G2.2 is “seriously flawed and accordingly entitled to little respect,” with federal judges declaring that §2G2.2 “is just as flawed as the crack guideline” or that a sentencing judge is “entitled to reject it entirely.”[13]  Federal district judges in Massachusetts have not yet issued similar written opinions but have imposed below-guideline sentences in child pornography cases, expressing their disagreement with the severity of §2G2.2.[14]    The latest Commission statistics on federal sentencing decisions reflect the reality that federal judges across the country are increasingly using their Kimbrough authority to impose below-guideline sentences in child pornography cases.  2011 Sourcebook of Federal Sentencing Statistics (available at www.ussc.gov/Data_and_Statistics/Annual_Reports_and_Sourcebooks/2011/SBTOC11.htm ) (last checked May 25, 2012).

IV.       Conclusion

Like the crack cocaine guidelines, the child pornography guidelines have generated negative reaction based on the unique level of Congressional involvement in their development. In response, after producing a comprehensive report documenting the history of these guidelines, the Commission has made the study of this serious crime, and the appropriate punishment of it,  one of its top priorities in 2012.  It is ultimately up to Congress, however, to address the perceived disproportionality of these guidelines, as it eventually did with crack cocaine.  Given the strong emotions and revulsion among the public about this crime, it is unclear at this time whether Congress will do so.  In the meantime, the controversy rages on in federal courtrooms here in Massachusetts and across the country.

Michael J. Pelgro is a Partner at Perry, Krumsiek & Jack, LLP in Boston, where he specializes in criminal defense, internal investigations, and civil litigation.  He spent several years as a state and federal prosecutor and was Chief of the Drug Unit at the U.S. Attorney’s Office in Boston.


[1] U.S. Sentencing Commission, Transcript of Public Hearing on Federal Child Pornography Crimes at 6 (Feb. 15, 2012)(Introductory Statement of The Honorable Patti B. Saris, Chair) (available at www.ussc.gov/Legislative_and_Public_Affairs/Public_Hearings_and_Meetings/20120215-16/Agenda_15.htm ) (last visited May 25, 2012).

[2] United States Sentencing Commission, Prepared Testimony of Judge Patti B. Saris, Chair, United States Sentencing Commission, Before the Subcommittee on Crime, Terrorism, and Homeland Security, United States House of Representatives at 1 (Oct. 12, 2011) (available at www.ussc.gov/Legislative_and_Public_Affairs/Congressional_Testimony_and_Reports/index.cfm) (last visited May 25, 2012).

[3] Gall v. United States, 552 U.S. 38, 49-50 (2007); Rita v. United States, 551 U.S. 338, 349-50 (2007); United States v. Martin, 520 F.3d 87, 90 (1st Cir. 2008)(quoting Gall, 552 U.S. at 46)).

[4] United States Sentencing Commission, Report on the History of the Child Pornography Guidelines at 54 (Oct. 2009) (available at www.ussc.gov/Publications/Offense_Types/index.cfm/20091030_History_Child_Pornography_Guidelines[1].pdf) (last visited May 16, 2012) (hereinafter referred to as “Commission Report”).

[5] T. Stabenow, Deconstructing the Myth of Careful Study: A Primer on the Flawed Progression of the Child Pornography Guidelines at 3 (2009)(available at www.fd.org/navigation/select-topics-in-criminal-defense/common-offenses/child-pornography-and-other-sex-offenses  ) (last visited May 25, 2012) (hereinafter referred to as “Stabenow Article”).

[6] Commission Report at 10 and fn. 45; Stabenow Article at 3-4.

[7] Commission Report at 17; Stabenow Article at 4.

[8] Commission Report at 38-39; Stabenow Article at 18.

[9] See also United States v. Twitty, 612 F.3d 128, 131-32 (2d Cir. 2010)(vacating sentence on plain-error review where district court mistakenly believed that it could not consider a broad, policy-based challenge to the child pornography guidelines); United States v. Dattilio, 2011 WL 4485165 at *6 (6th Cir. 2011)(holding that a district court disagreeing with the child-pornography GSR for policy reasons may reject that GSR based on that disagreement); Henderson, 649 F.3d at 963 (holding that, “similar to the crack cocaine Guidelines, district courts may vary from the child pornography Guidelines, §2G2.2, based on policy disagreement with them, and not simply based on an individualized determination that they yield an excessive sentence in a particular case.”).  See generally M. Hamilton, The Efficacy Of Severe Child Pornography Sentencing: Empirical Validity Or Political Rhetoric, 22 Stan. L. & Pol’y Rev. 545, 559-73 (2011)(collecting and discussing cases); Note, Congressional Manipulation Of The Sentencing Guideline For Child Pornography Possession: An Argument For Or Against Deference, 60 Duke L.J. 1015, 1032-35 (Jan. 2011)(collecting cases).

[10] The Court noted that a Sentencing Commission survey “found widespread dissatisfaction with §2G2.2” in that 70% of responding judges who sentenced defendants after Kimbrough and Gall  “reported that the Guidelines range for possession was too high.”  Id. at 606-07.

[11] See also United States v. Apodaca, 641 F.3d 1077, 1082-83 (9th Cir. 2011) (observing that several circuit courts “have criticized the Guidelines-recommended sentence for possession-only offenders … as being unduly severe” and that “an increasing number of district courts have refused to follow the Guidelines and have departed downward when sentencing possession-only defendants”).

[12] In affirming the sentence in a transportation of child pornography case, the Court added a “coda” that “[w]ere we collectively sitting as the district court, we would have used our Kimbough power to impose a lower sentence.”  Id. at 97.

[13] United States v. Donaghy, 2010 U.S. Dist. LEXIS 77007 at *6-7 (E.D. Wis. 2010)(collecting cases);  Diaz, 720 F.Supp.2d at 1041-42 (collecting cases); Phinney, 599 F.Supp.2d at 1040); United States v. Beiermann, 599 F.Supp.2d 1087, 1104 (N.D. Iowa 2009).  See also United States v. Cameron, 2011 WL 890502 at *6 (D. Me. 2011)(“This Court joins other courts which have expressed unease with §2G2.2 and the escalating impact of its enhancements.”); United States v. Zapata, 2011 WL 4435684 at *3 (N.D. Ind. 2011)(“[J]udges across the country have declined to impose sentences within the range recommended by Guideline §2G2.2.”); Gordon v. United States, 2011 U.S. Dist. LEXIS 72592 at *7, 10-11 (S.D. N.Y. 2011)(granting §2255 petition to vacate child pornography sentence on the ground that the court committed a fundamental defect resulting in a miscarriage of justice in assuming that more expertise underlay §2G2.2 than was the fact).

[14] See, e.g., United States v. Paul Proulx, Crim. No. 11-10274-JLT (Court rejected GSR of 51-63 months’ imprisonment in favor of sentence of 5 years’ probation with home detention in possession case); United States v. Shalin Bhavsar, Crim. No. 10-40018-FDS (Court rejected GSR of 41-51 months’ imprisonment in favor of sentence of 3 months’ imprisonment in possession case based, in part, on Congress’ “unique” involvement in the development of the guideline); United States v. Lawrence Follett, Crim. No. 10-10316-GAO (Court rejected GSR of 51-63 months’ imprisonment in favor of sentence of 18 months’ imprisonment in possession case based, in part, on view that a sentence within the GSR would be greater than necessary to accomplish the goals of §3553(a)); United States v. Simeon Stefanidakis, Crim. No. 10-10174-WGY (Court rejected GSR of 151-188 months’ imprisonment in favor of sentence of 84 months’ imprisonment in transportation case); United States v. Johnny Pires, Crim. No. 08-10063-RWZ (Court rejected GSR of 135-168 months’ imprisonment in favor of minimum mandatory sentence of 60 months’ imprisonment in receipt case based, in part, on belief that §2G2.2 is “arbitrary and unreasonable”); United States v. Tyler Helbig, Crim. No. 08-30052-MAP(Court rejected GSR of 30-37 months’ imprisonment in favor of sentence of 5 years’ probation in possession case).