Appeals nominee set sentence rule aside

Kelly Brenton Farley had it all planned out: fly into Atlanta for business, hook up with a woman he met on the Internet and have sex with her and her 10-year-old daughter.

But Farley never got the chance. When his plane landed in Atlanta, he was ensnared in an undercover FBI sting, arrested and later convicted at trial.

For crossing state lines to engage in sex with a child under 12, Farley faced a 30-year minimum mandatory prison sentence set by Congress. But U.S. District Judge Beverly Martin — President Barack Obama's nominee for the federal appeals court in Atlanta — declined to impose it.

In a ruling federal prosecutors call "unprecedented," Martin found unconstitutional the minimum mandatory term. In an order, she said the punishment was disproportionately severe when compared to penalties for similar and more aggravated crimes.

With hearings beginning Monday for U.S. Supreme Court justice nominee Sonia Sotomayor, the Senate Judiciary Committee has yet to schedule Martin's hearings. But her ruling in the Farley case is certain to be closely scrutinized and could make her confirmation process a bit rocky.

The ruling has already drawn sharp criticism by top House Republican lawmakers who say Martin ignored Congress' authority to decide the appropriate punishment for those who try to sexually abuse a child. Nine members are asking the 11th U.S. Circuit Court of Appeals — where Martin would sit if she is confirmed — to overturn her decision.

The congressmen are supporting an appeal by federal prosecutors who say Martin substituted her own judgments for those of Congress when it set the punishment in 2006. "The statute involves a grave a despicable offense, worthy of a substantial mandatory minimum sentence," the government's appeal said.

Last week, Rep. Lamar Smith (R-Texas), ranking minority member of the House Judiciary Committee, said Martin improperly lopped 10 years off Congress' mandatory minimum sentence for pedophiles. "If we're serious about protecting children from sexual predators, we must make sure that our laws are effectively enforced and that judges do not stray from Congress' intent," he said.

Among those supporting the government's appeal are House Minority Whip Eric Cantor (R-Va.) and former Judiciary Committee Chairman James Sensenbrenner (R-Wis.).

Last month, when Obama sought to elevate Martin to the appeals court, he called her a first-rate jurist with "unflagging integrity and evenhandedness." The 12-member 11th Circuit, hears appeals out of Georgia, Alabama and Florida.

Martin, 53, is a former U.S. attorney in Macon. She was put on the U.S. District Court in Atlanta by President Bill Clinton in 2000.

Former state Attorney General Mike Bowers, a Republican who recommends judicial appointments to Gov. Sonny Perdue, called Martin a straight shooter who "really believes in the rule of law and doing what's right."

No one should give her a hard time at her confirmation hearing, Bowers said. "She's a gift."

One of Georgia's two GOP senators, Saxby Chambliss, gave Martin a ringing endorsement, saying Obama "could not have chosen a more qualified individual" for the 11th Circuit.

Atlanta criminal defense attorney Don Samuel, an expert on federal sentencing law, noted that Martin did not declare the 30-year minimum mandatory sentence unconstitutional in every case — only as it applied to Farley. "[It] reflects her thoughtful consideration of whether the Constitution permits Congress to set a minimum sentence that bars a judge from considering any facts about the case that might make a sentence unreasonable," he said.

In her Sept. 2, 2008, order, Martin said she had "tremendous respect and deference" for Congress. But to simply assume a statute is constitutional without substantive review would violate the principle of separation of powers, she said.

At Farley's sentencing hearing, Martin sent him away for 19 years and seven months in prison. "I have never intended to imply that I don't consider this a serious offense," she told him.

During eight years as a federal judge, Martin said, the only statute she had struck down was a local sign ordinance. She also said that when she set out to decide the constitutional challenge to the mandatory prison sentence, she intended to uphold it.

But when reviewing other statutes imposing penalties for similar or more severe conduct, "I just couldn't form the words to say that it wasn't ... disproportionately harsh," she said.

Martin noted that crossing state lines with the intent to kill someone carries a maximum penalty of 10 years in prison; if the victim is physically harmed, the maximum is 20 years.

Farley, a father of six from McKinney, Texas, once earned $140,000 as a regional vice president for a financial services company. On Oct. 3, 2006, he entered a Yahoo chat room called "Fetish Number 14," devoted to the topic of incest.

In the chat, Farley met "Stephanie," who said she was a nurse and a single mother with a 10-year-old daughter named Sydney. But Stephanie was actually Joanne Southerland, a Clayton County detective assigned to the FBI task force.

Over the next seven months, Farley discussed, in increasingly graphic detail, the sex acts he wanted to engage in with Stephanie and Sydney. He encouraged Stephanie to show Sydney pornographic movies. He said he would give the 10-year-old some wine to relax her before sex.

He also told Stephanie he was coming to Atlanta on May 15, 2007, for a business trip. And he arranged to meet her at an International House of Pancakes in Riverdale after his flight landed.

Before he left, Farley telephoned "Stephanie," who let him talk to an FBI agent posing as Sydney. He also sent an e-mail to the 10-year-old girl: "I'm sure that you have seen what a good time those folks have on the movies and that is how we will be. We'll take pictures and laugh and share in some fun times."

When Farley's American Airlines' flight landed at Hartsfield-Jackson International Airport, two FBI agents and an Atlanta police officer boarded the plane, met Farley as his assigned seat and arrested him on the spot.

Farley waived a trial by jury, letting Martin determine his fate.

At trial, Farley testified it was all a fantasy and that he never would have done anything he said he would do in the chats.

"It's not something I'm proud of," he testified. "You know, words of embarrassment and shame and disgrace don't even begin to describe that. I had convinced myself that, you know, this was all talk. ... I didn't think it was anything real."

Farley had a business meeting set up with representatives of Colonial Life Insurance the day after he arrived in Atlanta. But he could not provide a good explanation for a devastating piece of evidence found on him when he was arrested — a Mapquest printout of the directions from the airport to the IHOP.

Martin found Farley guilty of both counts against him: crossing state lines to have sex with a child and using the Internet to entice a child to engage in sex.

"The evidence in this case is so horrible I hate to go over it again," Martin said when handing down her verdict. The judge said she believed if "Stephanie" had really shown up at the IHOP and made her daughter available, Farley had every intention to sexually assault the child.