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Fogle's attorney: Sentence based on 'fantasies,' not acts

Posted at 9:56 PM, Apr 21, 2016

INDIANAPOLIS -- The federal judge who sentenced Jared Fogle to more than 15 years in prison did so erroneously based on the former spokesman's "fantasies" and acts he didn't commit, Fogle's attorney argued Friday.

Attorney Ron Elberger appeared before the 7th Circuit Court of Appeals in Chicago Friday to argue for a lower sentence for his client.

Judge Tanya Walton-Pratt sentenced Fogle in November to 15 years and eight months in prison – going above the maximum of 12.5 years Fogle had agreed to in a plea deal with federal prosecutors.

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Walton-Pratt explained her sentence, saying Fogle had lived for years in a "web of deception and depravity."

"This defendant is obsessed with child pornography and having sex with minors," Walton-Pratt said during the sentencing hearing. "He fantasized about it in telephone conversations. He frequently expressed his desire to have sexual relations with children. He acted upon it when he traveled and sought out to have sex with minors."

On Friday, Elberger argued Walton-Pratt wrongfully considered Fogle's "fantasies" when determining his sentence. Read an excerpt from his argument below:

"We know, and the government has not contended, that Mr. Fogle did not distribute any child pornography on the internet, nor is there any evidence that he ever collected any child pornography on the internet or went on the internet for that purpose.

Second, with regard to photos or videos of Taylor's victims, the government agreed that at least four of the first 12 victims were not known the Fogle, and Minor Victim 1 was also unknown. In addition to which, Fogle did not see all of the photos and videos of which Taylor produced. It just did not happen.

Now, did he ask Minor Victims 13 & 14, the advertising prostitute minors in New York City, as to whether or not they could arrange for Fogle to participate in commercial sex acts with children as young as 14 years of age? The answer is yes, on multiple occasions, and it decidedly was in regard to multiple others throughout the United States. But, as the 2nd Circuit held in United States vs. Valley, the mere fact that someone is fantasizing about a crime, or committing a crime – even a crime of violence against a real person whom that person knows – is not itself a crime, nor is it a basis to provide aggravation for a sentence."

Elberger said that while Walton-Pratt had discretion to extend Fogle's sentence beyond the terms of the plea deal, her "disdain and disapproval" of his actions were evident – and caused her to give the former Subway spokesman a higher sentence than was warranted.

Federal prosecutors argued that Fogle's involvement in the production of child pornography extended beyond fantasy.

"There's really no question that Mr. Fogle knew the victims in the homemade child pornography by name, knew where they lived and knew who was producing the material," U.S. Attorney Steve DeBrota said. " He also knew who Minor Victim 1 was, and knew about the production of Minor Victim 1. Had he reported that, Minor Victims 2 through 12 never would have been victimized."

The 7th Circuit Court of Appeals will take Elberger's arguments into consideration. No date was set for a ruling on the appeal.