United States v. Furlong

In 2008, Furlong was convicted at court-martial and sentenced to 15 months confinement, a BCD, and RiR for distribution of child pornography under Article 134 of UCMJ. AFCCA short-formed its affirmance of the findings and sentence. United States v. Furlong, ACM 37294, 2009 CCA LEXIS 124 (A.F. Ct. Crim. App. Mar. 25, 2009).

Now, it is sometime before June 2019. Furlong "pled guilty to the distribution of child pornography, in violation of 18 U.S.C. § 2252A(a)(2)." He was initially sentenced to 284 months confinement, based partly on his prior conviction under Article 134 of distributing CP. It appears part of his plea bargain allowed him to avoid a conviction of "attempted solicitation of a minor under 18 U.S.C. § 2242(b)," with exposure to an additional "sentence of not less than 20 years' imprisonment." Keep in mind he was a registered sex offender at the time based on his court-martial conviction.

However, on appeal, Furlong alleged that an Article 134 conviction was not a predicate offense justifying a sentence enhancement. During the litigation, the government agreed there was an error but suggested "reassessment" rather than a sentence rehearing. The district court agreed with the government and reduced the confinement to 240 months, still at the top of the sentencing range.

​Why was this error.

Specifically, Furlong points to the text of the statutory language, which only lists Article 120 of the UCMJ as a predicate offense and not Article 134, and a Tenth Circuit decision, which held that Article 134 is not a predicate sentence enhancer under § 2252A. Id.; see United States v. Brown, 529 F.3d 1260, 1265 (10th Cir. 2008) (holding that because § 2252A "include[s] violations of the UCMJ [but] did not include Article 134, nor UCMJ violations relating to child pornography generally," a prior Article 134 conviction does not qualify as a predicate sentence enhancer). The Government does not contest Furlong's position and cannot identify a Sixth Circuit decision interpreting § 2252A to the contrary. Therefore, the Court agrees that the sentence enhancement was in error and grants Furlong's request that his conviction be "sentenced as a first-time conviction of not less than 5 years and not more than 20 years."

As part of his argument for a sentence rehearing, Furlong stressed the  "Court should "revisit its sentencing discretion under the new statutory parameters," including considering whether Furlong's "exemplary conduct" entitles him to a sentence "below the bottom of his agreed advisory Guidelines range of 235 months.""

The court disagreed, check out fn. 2.

United States v. Furlong, Criminal Case No. 18-cr-20476, 2025 U.S. Dist. LEXIS 7145 (E.D. Mich. Jan. 14, 2025).