Pint-Sized Miley Cyrus Hacker Seeks Jail Pass

OCTOBER 27--Citing his diminutive physical stature among other mitigating factors, the Tennessee man who hacked Miley Cyrus’s e-mail account has asked a federal judge to spare him prison time when he appears Monday for sentencing on felony spamming and computer fraud charges.

In an October 26 pre-sentencing memorandum, the lawyer for Josh Holly, 22, argued that a probation term would be “sufficiently onerous punishment for a first-time offender of immature mental age.” Even a brief jail term, attorney Sumter Camp contended, “would hinder rather than aid Josh’s rehabilitation.”

Camp also noted that Holly deserved credit for meeting earlier this year with an FBI agent to provide “information about others that he was aware were involved in illegal computer-related activities.”

Holly, pictured in the above mug shot, pleaded guilty in August to possessing about 200 stolen credit card numbers and to sending spam mailings via MySpace. He has not been charged in connection with the late-2007 Cyrus hack, for which he took credit in online postings, as well as in an October 2008 FBI interview. Holly distributed online racy images of the underage Cyrus that he found in her Gmail account.

Responding today to Camp’s memo, a federal prosecutor wrote that he would not challenge factors raised about Holly’s “youth, mental and emotional issues and physical stature.” Though government lawyer Hilliard Hester did note that he was the same height as the 5’ 6” Holly, who was “not so remarkably short” that a downward sentencing is warranted.

As for Holly’s “suggested sentence of probation with home detention,” Hester countered that such a penalty would not be sufficient, stating that “further negative reinforcement is needed to deter future criminal conduct.” The prosecutor also noted that Holly recently violated terms of his release by accessing the Internet and posting messages on Facebook and Google+.

In a July 4 Facebook post, Holly wrote, "I’m having these strong urges to start playing around and hacking shit again, there’s so much new stuff on the net. I can’t stop these urges. Am I a bad person?” Holly's unauthorized online activity was described in a U.S. District Court filing made by a Pretrial Services Officer.

While the respective court submissions do not detail the specific sentencing guideline range Holly faces, it appears that his possible prison exposure is limited. In fact, Hester wrote that if Judge Aleta Trauger opted for a probationary sentence, the Department of Justice recommended that Holly “serve three (3) consecutive days in actual custody” to be followed by 90 days in a halfway house. (5 pages)