RICHMOND, Va. (CN) —A Fourth Circuit Court of Appeals panel vacated a lenient sentence for a cybercriminal Tuesday, determining that his sentence should reflect the seriousness of his crimes regardless of his characteristics.
“When selecting Fitzpatrick’s sentence, the district court relied only on his history and personal characteristics — his autism and youth — even though it acknowledged in passing the seriousness of his crimes,” U.S. Circuit Court Judge Paul Niemeyer, a Ronald Reagan appointee, said. “And, most glaringly, the court never addressed, as required, how his sentence ‘achieve[s]’ respect for the law, punishment, deterrence, and incapacitation, all of which are core purposes of sentencing.”
Conor Fitzpatrick, who went by the online alias “pompompurin,” created and operated BreachForums, the most significant English-language online marketplace for buying and selling stolen personal data. The site allowed users to traffic or facilitate the trafficking of stolen or hacked databases containing personal information.
At its height, the website contained billions of individual records — including names, dates of birth, social security numbers, employment information and health insurance information — helping Fitzpatrick and his conspirators earn nearly $700,000. While searching his devices, law enforcement also found he downloaded 26 files with at least 600 images of child pornography and viewed videos that depicted prepubescent children engaging in sex acts.
After pleading guilty but before sentencing, Fitzpatrick violated the conditions of his bond by accessing the internet, where he joked with his online friends about the ordeal. Following discovery of these violations of his conditions for release, Fitzpatrick was detained pending sentencing for what turned out to be 17 days.
Fitzpatrick’s crimes called for a sentence between 15 and 20 years, but a federal judge based in Virginia instead opted to impose a time-served sentence of 17 days along with 20 years of supervised release. The downward variance is more than 99% less than the sentencing guidelines.
The federal judge said that Fitzpatrick’s status as an autistic 21-year-old convicted of child pornography charges made him susceptible to violence in prison. The judge also claimed the federal prison would be ill-equipped to treat his autism, saying it would be a disaster if Fitzpatrick ended up in a prison’s general population and that he would be ravaged.
The government argued that the sentencing court relied exclusively on Fitzpatrick’s characteristics and ignored the need for his sentence to reflect the seriousness of his offense, promote respect for the law, deter similar wrongdoing and protect the public.
Fitzpatrick contended he was not motivated by greed or any other moral shortcoming and could not truly understand the consequences of his actions.
Though Fitzpatrick argued that his autism significantly undermined his culpability for his offenses, the three-judge Fourth Circuit panel agreed with government and emphasized the amount of victims harmed by both Fitzpatrick’s website and his downloading of child pornography.
“Not only did Fitzpatrick commit serious offenses, but he also showed a lack of remorse, joking about committing additional crimes even after entering a guilty plea,” Niemeyer said. “Yet, despite Fitzpatrick’s conduct, the district court never addressed the seriousness of his crimes.”
The panel pointed to a conversation Fitzpatrick had with friends while violating the terms of his release. One friend suggested he would receive a sentence of around a month. Niemeyer said the lenient sentence could encourage other criminals.
“If anything, a 17-day sentence for the commission of three serious felonies signals to would-be criminals that they might get one free pass before facing any serious penalties,” Niemeyer said.
Niemeyer also pushed back against the lower court’s finding that Fitzpatrick’s parents would protect the public from his further crimes.
“The court seemingly failed to consider that Fitzpatrick immediately and continuously violated the conditions of his presentence release while at home under the supervision of his parents,” Niemeyer said. “Indeed, Fitzpatrick committed the very offenses at issue while living at home with his parents.”
The panel also agreed with the government that the lower court judge failed to explain why the federal bureaus of prisons couldn’t accommodate Fitzpatrick’s condition.
During the oral argument, Fitzpatrick’s counsel argued that they didn’t need to provide evidence supporting that finding because it is common knowledge that the federal prison agency has enough problems dealing with mentally sound inmates.
The panel relied heavily on its prior case, United States v. Zuk, where they dealt with nearly identical circumstances. In Zuk, the Fourth Circuit vacated a sentencing court’s downward variance of 26 months from a guideline sentence of 240 months. That case’s defendant also argued his age of 22 and his autism diagnosis mitigated his culpability for his conduct and affected his treatment needs.
“Just as in Zuk where no expert testified that Zuk’s medical condition caused his criminal conduct, no expert testified in this case that Fitzpatrick’s condition caused his criminal misconduct,” Niemeyer said.
Fitzpatrick created BreachForums after the FBI had shut down a similar site called RaidForums, of which he was a well-known member. Fitzpatrick’s counsel did not respond to a request for comment. U.S. Circuit Judges Allison Rushing, a President Donald Trump appointee, and Toby Heytens, a Joe Biden appointee, joined Niemeyer on the panel.