United States v. Olhovsky

Nicolau Olhovsky (defendant) was a physically frail young man who was depressed, socially isolated, and developmentally immature. When Olhovsky was 18 years old, law enforcement agents discovered over 600 images of child pornography on Olhovsky’s computer. The federal government (plaintiff) charged Olhovsky with possession of child pornography, and Olhovsky pleaded guilty. Two years passed between Olhovsky’s guilty plea and his sentencing hearing. In those two years, Olhovsky underwent extensive psychotherapy with Dr. Howard Silverman, a psychologist from Probation and Pretrial Services. Prior to Olhovsky’s sentencing hearing, Silverman sent a letter to the court stating that Olhovsky had made tremendous progress in therapy, that his experimentation with child pornography was the product of loneliness and immaturity rather than innate pedophilic proclivities, and that Olhovsky was currently in a stable, age-appropriate, romantic relationship. Silverman, along with two other psychologists who had interviewed Olhovsky, told the court that Olhovsky showed little-to-no risk of recidivism and strongly recommended against incarceration. In response, the government’s expert, who neither interviewed Olhovsky nor reviewed his treatment notes from Silverman, told the court that incarceration was the only way to ensure that Olhovsky was properly monitored and was not a danger to the community. At the sentencing hearing, the court calculated that the federal sentencing guideline for Olhovsky’s offense was 120 months. The court sentenced Olhovsky to six years, or 72 months, stating that, despite Olhovsky's youth, the sentence needed to reflect the seriousness of the crime and the fact that Olhovsky’s therapy had been ineffective to date. The court failed to consider Silverman’s report, as Olhovsky’s treating physician, that Olhovsky was progressing well in therapy and displayed little risk of reoffending. Olhovsky appealed.