A Bowie County, Texas, man serving time in federal prison for child pornography possession recently filed a motion asking for a reduction in his sentence.
Herbert Whiseant, 73, was arrested at his home in Liberty-Eylau community in June 2012 in an investigation into internet child pornography that began in Longview, Texas, according to a search warrant affidavit and other court documents used to create the following account. Before executing a search warrant on Whiseant's home, officers conducted a "pat-down" of Whiseant for their own safety.
While no weapons were discovered, officers recovered two pairs of small girl's panties and a thumb drive later determined to contain approximately 500 sexually graphic images of children in his pockets. In the trunk of Whiseant's car, investigators recovered about 20 more pairs of small girl's panties and a blow-up sexual doll.
Later in 2012, Whiseant pleaded guilty to a single count of transportation of child pornography and in 2013 he was sentenced to 135 months in federal prison. Whiseant filed a petition in January seeking a 24-month reduction in his sentence citing recent amendments to U.S. sentencing guidelines. The amendment on which Whiseant's argument relies concerns offenders whose offenses involve the use of peer-to-peer, file-sharing software. Some federal appellate courts have found that the use of such software may not constitute a knowing and intentional distribution of child pornography. Distribution of child pornography often results in a more severe punishment than possession.
In a response to Whiseant's request, Assistant U.S. Attorney Jonathan Ross points out that Whiseant agreed in writing at sentencing that he did distribute child pornography and notes that Whiseant waived his right to appeal his sentence as part of a plea agreement.
Whiseant also argues that the court should consider a reduction in his sentence because he accomplished the "monumental feat" of completing his GED while incarcerated and because he "strives to be a model inmate and an inspiration to younger inmates."
Ross' response notes that while Whiseant should be proud of acquiring a GED while in prison, the law he cites as grounds for a reduction based on his behavior after sentencing only applies to defendants whose sentences have been reversed on appeal, which Whiseant's has not.
Whiseant's motion for a reduction of sentence and Ross' response in opposition of it are pending before U.S. District Judge Robert Schroeder in the Texarkana Division of the Eastern District of Texas. Whiseant is being held in Texarkana's Federal Correctional Institution. According to the Bureau of Prisons website, his projected release date is April 15, 2022.