It may constitute plain error for a District Court to rely on an unsupported theory of deterrence at sentencing. The defendant, Laura Culver, allegedly produced child porn of a minor child who was under her custody and control. At sentencing, U.S. District Judge Warren Eginton commented that the popularity of social media such as Facebook probably would result in an increase in child porn. Judge Eginton allegedly added that he hoped that Mark Zuckerberg, who founded Facebook, was "enjoying all his money because . . . he's going to hurt a lot of people. . . ." Culver appealed and argued that her sentence of 96 months was substantively and procedurally unreasonable. The 2nd Circuit reviewed for plain error, because Culver did not object at sentencing. The 2nd Circuit found that Culver's crime was "abhorrent" and that a sentence of eight years was within the District Court's substantive discretion, because it was 20 percent lower than the bottom of the recommended U.S. Sentencing Guidelines range. Culver established her rights were affected, because Judge Eginton indicated he might have sentenced her to six years in prison, as opposed to eight, except he was concerned about deterrence and the potential for child porn on Facebook. "Culver is correct," wrote the 2nd Circuit, "that the court's lengthy discussion of Facebook had no clear connection to the facts of her case." The 2nd Circuit added, "It is plain error for a district court to rely upon its own unsupported theory of deterrence at sentencing, especially where, as here, that theory has little application to the actual facts of the case itself." Culver did not use the Internet to commit her crime, and it should not have played a role in sentencing. The 2nd Circuit vacated and remanded to the District Court for resentencing.

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