## Facts

- Nicolau Olhovsky pleaded guilty in the District of New Jersey to possession of child pornography under 18 U.S.C. § 2252A(a)(5)(B).
- An undercover officer observed Olhovsky trading child pornography on an IRC channel; a later search of his home computer found over 600 images, including images of prepubescent girls engaged in sexual activity with adult men.
- Olhovsky admitted collecting and trading images via IRC and stated he began viewing child pornography at approximately age 15; he was 18 at the time of the search.
- Olhovsky had significant physical and mental-health history, including childhood medical conditions and surgeries, social isolation, depression, suicidality, and psychiatric hospitalization.
- While on pretrial supervision awaiting sentencing, Probation arranged treatment with Dr. Howard Silverman, a psychologist specializing in sex-offender treatment, who treated Olhovsky for over a year.
- Dr. Silverman concluded Olhovsky resembled a “juvenile sexual abuser” with sexual interests not fixed, had a favorable prognosis with treatment, and faced heightened risk of harm and regression if incarcerated; he provided written submissions to the court and parties.
- At sentencing, the district court calculated an advisory Guidelines range driven by enhancements and imposed 72 months’ imprisonment followed by supervised release.
- The district court refused to permit Dr. Silverman to testify live at the sentencing hearing.

## Issues

1. Whether the district court committed procedural error by refusing to allow live testimony from the defendant’s treating psychologist on mitigation relevant to 18 U.S.C. § 3553(a).
2. Whether the 72-month sentence was substantively unreasonable because the district court gave excessive weight to the child-pornography Guidelines and insufficient weight to individualized mitigating factors under § 3553(a).

## Decision

- The Third Circuit vacated the sentence and remanded for resentencing.
- The court held the district court erred as a matter of law by excluding the treating psychologist’s live testimony at sentencing, where it directly concerned § 3553(a) considerations such as history and characteristics, risk of recidivism, and treatment needs.
- The court further held that, on the record presented, the 72-month sentence was unreasonable because the sentencing analysis did not adequately account for substantial mitigation and relied too heavily on the Guidelines.
- The court directed that on remand the district court should admit Dr. Silverman’s testimony and conduct a renewed, individualized § 3553(a) analysis.

## Legal Principles

- Sentencing must be individualized, and courts should consider the fullest available information about the defendant’s history, characteristics, and treatment prospects when applying 18 U.S.C. § 3553(a).
- A defendant must be given a meaningful opportunity to present mitigation evidence at sentencing; excluding key live testimony from a treating professional can constitute procedural error when it materially limits the sentencing record.
- Written submissions may not be an adequate substitute for live testimony when the testimony could clarify contested points or inform the court’s assessment of culpability, dangerousness, and appropriate treatment.
- Post-Booker appellate review evaluates procedural reasonableness (including errors affecting the sentencing process) and substantive reasonableness (whether the sentence reflects a reasoned application of § 3553(a) and the parsimony principle).
- In child-pornography cases, a sentencing court may not treat the advisory Guidelines as controlling; it must independently weigh § 3553(a) factors and address mitigating evidence, including youth, non-contact conduct, psychological vulnerabilities, and rehabilitative prospects.

## Conclusion

The Third Circuit vacated and remanded because the sentencing court improperly excluded live mitigation testimony from the defendant’s treating psychologist and imposed a sentence that did not reflect a sufficiently individualized application of § 3553(a), resulting in an unreasonable term of imprisonment.


United States v. Olhovsky, 562 F.3d 530 (3d Cir. 2009)