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Rochester man to be resentenced

Newly raised questions on sentencing guidelines in child pornography cases need to be reviewed before a Rochester man is resentenced for conviction of a felony count of receipt of child pornography.

Jason E. Tutty, 38, was sentenced by U.S. District Judge Charles J. Siragusa in June 2009 to 14 years in prison after pleading guilty to the charge, admitting he possessed between 150 and 300 digital images of child pornography which he had received and distributed over the Internet.

He appealed, challenging the reasonableness of the sentence. In a decision filed Friday, the Second Circuit concluded the district court erred when it relied on outdated law and held that it did not have the authority to impose a non-guidelines sentence.

In a May decision in U.S. v. Dorvee, the U.S. Supreme Court said that the federal sentencing guidelines as they pertain to child pornography-related offenses present important policy considerations and, unless carefully applied, easily generate unreasonable results.

“We vacate the judgment and remand to the district court for resentencing to correct the procedural error and to consider the police concerns addressed  in Dorvee,” Second Circuit Justice Denny Chin wrote.

Some of the images Tutty downloaded showed children younger than 12. Tutty had no prior criminal history and there was no evidence that he ever had sexual contact with a child.

At sentencing, the district court determined Tutty fit into a guideline range of 41 to 51 months in prison, but multiple sentencing enhancements were added, raising the total offense level substantially based on the age of the children, use of a computer, the number of images, distribution and the content of some of the images.

“Finally, Tutty made a policy argument, urging the district court to consider the especially harsh nature of the child pornography sentencing enhancements,” the Second Circuit wrote. “The district court, however, was not convinced that it had the authority to depart based solely on these policy grounds.”

On appeal, Tutty argued there was no proof he ever saw the image that served as the basis for the enhancement for possessing sadistic imagery, and that any sentence within the guideline range for offenses involving child pornography “must be considered suspect.”

The higher court sent the case back, asking the district court to “exercise its discretion anew” with the benefits of the ruling in Dorvee, which in part notes the series of enhancements in the child pornography guidelines result in guideline ranges usually near or more than the statutory maximum.

“The district court did not err when it held that the 4-level enhancement for possession of sadistic, masochistic or violent materials applies to Tutty,” the Second Circuit’s decision states.

Tutty was represented by Jay Ovsiovitch of the Federal Public Defender’s Office in Rochester. (Robert G. Smith, assistant federal public defender for the Western District of New York, worked on the brief).

Joseph J. Karaszewski, assistant U.S. attorney (William J. Hochul Jr., U.S. attorney for the Western District of New York, on the brief) argued for the appellee.

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