Former Subway pitchman Jared Fogle on Friday asked a federal appeals court judge to shorten his nearly 16-year prison sentence.
Fogle attorney, Ron Elberger, said Fogle’s sentence was based on a federal district court judge’s “mistaken belief” that Fogle was involved in the production of child pornography.
Elberger also said Fogle did not see all the photos and videos produced by his former employee Russell Taylor. “It just did not happen,” Elberger said.
The hearing on Fogle’s appeal held at the 7th U.S. Circuit Court of Appeals in Chicago occurred about six months after U.S. District Judge Tanya Walton Pratt sentenced Fogle to 15 years and eight months in federal prison.
Fogle argued that his sentence was unreasonable and that Pratt abused her discretion when she went beyond the sentence that federal prosecutors had recommended as part of a plea agreement.
Just fantasizing about a crime or committing a crime is not a crime, Elberger said.
Even though Fogle talked about having sex with young minors, “that’s all he did. It was all talk and no substance,” Elberger said.
However, Assistant U.S. Attorney Steve DeBrota said after the hearing that one aggravating factor is that Fogle knew some of the victims, which is more of a factor in the sentencing that receiving pornography from anonymous victims.
DeBrota said Fogle asked adult prostitutes to provide him access to minor victims. “None of that was fantasy. That was solicitation,” DeBrota said.
DeBrota also repeated the district judge’s point: Fogle had a great family and no history of child abuse or neglect.
“That makes him more blameworthy, not less,” DeBrota said.
The appellate court will make a hearing at a later date.
Fogle, the one-time face of Subway sandwiches pleaded guilty to possession or distribution of child pornography and traveling across state lines to have commercial sex with a minor. Prosecutors recommended a maximum sentence of 12½ years, while Fogle’s defense attorneys asked for five years.
Fogle’s interest in minors dates to at least 2007, and his illegal activities accelerated after Russell Taylor became the head of his foundation a year later. Fogle viewed images of children, ages 9 to 16, who were secretly recorded by Taylor while they were changing clothes, showering and bathing. One video showed a more sexually explicit act. Fogle also traveled to New York City hotels to have sex with a 16-year-old and a 17-year-old.
Police arrested Taylor in April 2015. He has been sentenced to 27 years in prison for creating and distributing child pornography.