On October 29, the Fourth Circuit Court of Appeals heard oral arguments in the government’s appeal of Conor Brian Fitzpatrick’s sentence. At issue was whether District Court Judge Leonie M. Brinkema had abused her discretion in sentencing Fitzpatrick and whether her sentence was “substantively unreasonable.” Judges have discretion in sentencing and courts are often reluctant to overturn a decision just because they may disagree with a judge’s decision, but if a sentence deviates so significantly from sentencing guidelines without some kind of justification for the variance, the sentence may be “substantively unreasonable.”
Background
Conor Brian Fitzpatrick (aka “Pompompurin”) was the founder and owner of Breached.vc (the first “BreachForums” that replaced RaidForums after that forum was seized). He was active in helping forum users make deals involving stolen or hacked data, and his activities had a significant impact on numerous victims. At the time of his arrest, Breached.vc was the largest forum of its kind for dealing with hacked or leaked databases.
When his devices were seized at the time of his arrest in March 2023, investigators also found 26 files with 600 child pornography images. Some of the images were of pre-pubescent minors.
In July, Fitzpatrick pleaded guilty to three counts: conspiracy to commit access device fraud, solicitation for the purpose of offering access devices, and possession of child pornography. He also agreed to pay full restitution to victims (the final amount had not yet been tallied at the time of his plea, but was about $700,000 at that time).
While out on bond following his arrest, Fitzpatrick reportedly violated the terms of his conditions repeatedly. On January 2, 2024, while still out and awaiting sentencing, he was arrested for violating bond. He did not oppose detention and was held at the Alexandria Adult Detention Center until his sentencing hearing a few weeks later.
That time that he spent in the detention center — 17 days — would be the only time he would serve.
From 188 Months to 17 Days?
In January 2024, Judge Brinkema sentenced Fitzpatrick to 17 days time served and 2o years supervised release. The judgment was a total shock to many people. The government had sought a minimum of 188 months in prison under the federal sentencing guidelines, and a maximum of 235 months.
The judge’s decision should have considered the seriousness of each of Fitzpatrick’s crimes, the effect on his victims (including the minors in the pornography files), his likelihood of recidivism and the need to protect public safety, the deterrence value of any prison sentence, and respect for the law — that serious crimes deserve serious sentences. So how did the judge sentence him to only 17 days time served instead of a lengthy prison term followed by lengthy supervised release?
And given that while Fitzpatrick was living at home while out on bond and he continued to engage in criminal activities from his own home, how could the court possibly think that releasing him back to his home would prevent him from engaging in more criminal activity? He had already shown that he was likely to violate the terms of any supervised release or probation.
Would victims of child pornography feel they got justice if he only served 17 days in a detention center? What about victims of data breaches that were posted on his forum?
Was 17 days time served “substantively unreasonable?” What was the judge thinking?
“Mental Health”
Judge Brinkema’s judgment did not provide satisfactory answers to those questions. She wrote only a few paragraphs that didn’t address some of the sentencing factors that should have been considered. Whatever was in a sealed report of a mental health evaluation appears to have influenced her tremendously. But did she go beyond what the report actually said?
Although the report on Fitzpatrick and his diagnosis (or diagnoses) was sealed, there were a few slip ups during hearings or redaction failures — enough that we know that they are referring to “autism.” It is not an uncommon diagnosis in the hacking community. But “autism” is a spectrum disorder. If his mental health issues from autism contributed to his criminal conduct, how exactly did it contribute to it? And should it make any difference in sentencing? What about his autism could possibly justify the extreme departure from 188 months to 17 days time served?
Or did her concern for the defendant’s mental health outweigh any concerns for his victims, a need to protect the public from future crimes by him, and the need to enforce stern measures for very serious crimes like child pornography?
Oral Argument
Oral argument for the government was presented by Joseph Attias. Andrew James Frisch argued for Fitzpatrick. The arguments were heard by the Honorable Paul V. Niemeyer, Allison J. Rushing and Toby J. Heytens.
The government’s case followed its written brief that the judge’s sentence was substantively unreasonable because:
A. The district court erred in focusing excessively on Fitzpatrick’s mental health condition to the exclusion of other sentencing
factors:
The district court’s sentence fails to account for the seriousness of Fitzpatrick’s offenses or provide just punishment
The district court’s sentence fails to afford any specific deterrence or protect the public from further crimes
The district court’s sentence undermines respect for the law and fails to afford any general deterrence
The district court’s sentence creates significant sentencing disparities; and
B. The district court’s unsupported conclusions about Fitzpatrick’s mental health condition failed to justify its significant downward variance
Attias’s argument cited United States v. Zuk, a somewhat similar case in which the defendant had a sentencing guideline range of 324 to 405 months for child pornography, capped at the 240-month statutory maximum. The judge in that case imposed a 26-month time-served sentence after focusing almost entirely on Zuk’s autism spectrum disorder. The Fourth Circuit vacated and remanded, holding that the defendant’s autism was not primarily responsible for his criminal conduct and did not justify significantly discounting other sentencing factors that require serious consequences for the behavior.
Given that the Fourth Circuit had already once vacated and remanded for a case of extreme departure from guidelines, the government hoped the court would do it in this case, too. If the Fourth Circuit does agree with the government and vacates and remands the sentencing, they would not be instructing the district court what the sentence should be. But they would be telling the lower court that there is no way a 17 day time served sentence was in any way reasonable and that the lower court must consider the other sentencing factors other than mental health.
When it was the defense’s turn, Frisch tried to make the case that the Fourth Circuit should give the lower court judge a chance to simply explain her reasoning in issuing a sentence that was such an extreme variant from sentencing guidelines. The justices did not seem to endorse that idea, noting that a judgment on their part of “substantive unreasonableness” means that they have judged that there is no way that 17 days is reasonable given the seriousness of the crimes and sentencing factors, and simply having the judge explain themselves more won’t change that.
In addition to emphasizing the mental health concerns, Frisch tried to suggest that Judge Brinkema was also responding to the inability of the Bureau of Prisons (BOP) to handle prisoners with autism. What was actually in the lower court’s sealed report is not clear. Did a sealed report by an evaluator claim that the BOP might have problems handling or treating Fitzpatrick, or did it claim that the BOP cannot handle prisoners with autism, period? What did the report actually say and how did the judge interpret it?
The general issue of whether prisons can handle prisoners with autism has been raised in a number of cases, as has the overall issue of insufficient mental health resources in prisons (see, for example, the Marshall Project and the lawsuit filed this year by the Washington Lawyers’ Committee). If Judge Brinkema believed that prison could not meet Fitzpatrick’s mental health needs and he would be “ravaged,” then where was the evidence presented to the court to justify that? Or was the judge concerned he would be assaulted in prison because of the child pornography? Again, it’s not clear because Judge Brinkema did not really explain her reasons for her judgment. She certainly didn’t explain how letting Fitzpatrick be in the same environment where he previously downloaded pornography would protect the public from further such crimes.
Frisch’s attempts to suggest that Judge Brinkema’s sentencing might be substantively reasonable if she just explained herself better and if the court understood that the BOP absolutely cannot handle prisoners with mental health needs did not seem to persuade the judges.
If They Vacate and Remand
If the Fourth Circuit vacates and remands, the case goes back to the district for sentencing. The judge will not necessarily have to impose at least the minimum sentence of 188 months, but they should come up with a sentence that seems more reasonable given the seriousness of the crimes.
For those who are curious as to what happened to Zuk when his sentence on child pornography charges was vacated: his sentence was originally 26 months time served, supervised release for life, and $100 assessment. The amended judgment following the Fourth Circuit’s vacate and remand order was 71 months imprisonment, supervised release for Life, and $25,000 restitution. The imprisonment portion notes:
The defendant is hereby committed to the custody of the United States Bureau of Prisons to be imprisoned for a term of SEVENTY-ONE (71) MONTHS. WHEN IMPOSING THIS SENTENCE, THE COURT TOOK INTO ACCOUNT THE TWENTY-ONE MONTHS DEFENDANT SPENT AT ALPHA HUMAN SERVICES IN MINNEAPOLIS, MINNESOTA AND HAS CREDITED HIM APPROPRIATELY; THEREFORE, DEFENDANT IS NOT TO BE DOUBLE CREDITED FOR SAID TIME. THIS SENTENCE DOES NOT INCLUDE ANY PRIOR CUSTODY CREDIT WHICH WILL BE DETERMINED BY THE U.S. BUREAU OF PRISONS.
So what might happen to Fitzpatrick if the Fourth Certificate holds that the district court’s sentence was substantively unreasonable? As a best guess, he could be facing years in prison if his lawyer cannot make a persuasive case as to why prison would be inappropriate.
For those who would like to listen to the oral arguments, you can listen to them on YouTube. Fitzpatrick’s case starts at around 1:28 in the video.