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Child Pornography Sentencing Guidelines

The Child Pornography Guidelines – U.S.S.G. §2G2.2, and the Sentencing Ranges Recommended By § 2G2.2 Are Not the Result of Careful Study and Empirical Analysis, and therefore the Child Pornography Guidelines Should Not Be Given the Same Weight as Other Sentencing Guidelines by Sentencing Courts, Which Should, In Appropriate Cases, Impose Significantly Lower Sentences.

The sentences being given in federal child pornography cases are among the highest, and often the most abusive, cruel, and unfair sentences being handed down in federal criminal cases. A sentencing court in a federal child pornography case must begin its sentencing calculus by determining the applicable Sentencing Guideline range under the United States Sentencing Guidelines, 18 U.S.C. §§ 3551 et seq. and 28 U.S.C. §§ 991-998, in determining the ultimate sentence. However, after the Supreme Court’s decision in United States v. Booker, 543 U.S.220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), the sentencing court may now choose to impose a different sentence than the sentence recommended by the Sentencing Guidelines because the guidelines sentence itself fails properly to reflect statutory considerations, or “perhaps because the case warrants a different sentence regardless Rita v. United states, 551 U.S. 338, 351, 127 S.Ct. 2456, 2465, 166 L.Ed. 2d 406 ( 2007) (citations omitted).

Such is the case in many federal child pornography cases. The applicable Sentencing Guideline, U.S.S.G. § 2G2.2, has come under increasing scrutiny, and been the subject of increasing judicial criticism, because it has been shown that § 2G2.2 is not the result of careful study and empirical analysis by the Sentencing Commission, but rather, the result of morality driven and politically motivated Congressional and Executive interference with the Sentencing Commission’s usual institutional role of establishing appropriate sentences for specific offenses. See, Troy Stabenow, Deconstructing the Myth of Careful Study: A Primer on the Flawed Progression of the Child Pornography Guidelines, available at http://mow.fd.org/3 July 2008 Edit.pdf (last visited Jan. 12, 2010).  See also e.g., United States v. Riley, 655 F.Supp.2d 1298, 1300-04 (S.D.Fla. 2009) (King, J.) (Citing Stabenow article and other case law, and imposing 60-month sentence based primarily on defendant’s offense conduct and characteristics in transporting child pornography case, rather then recommended Sentencing Guidelines range of 210 to 260 months, finding that § 2G2.2 did not exemplify the Sentencing Commission’s characteristic institutional role of careful study and empirical analysis); United States v. Grober, 595 F.Supp.2d 382, 391-95 (D.N.J.2008) (Hayden, J.) (Citing Stabenow article and other case law, imposing 60 month sentence where guidelines recommended 235 to 293 months based primarily on defendant’s offense conduct and characteristics in receipt and possession of child pornography prosecution, finding that §2G2.2 deserving of less deference based on lack of careful study and empirical analysis by Sentencing Commission); United States v. Hanson, 561 F.Supp.2d 1004, 1010-11 (E.D.Wis.2008) (Adleman, J.) (Citing Stabenow article and other case law, and finding that sentencing courts are free to consider whether the guideline sentence itself fails properly to reflect the statutory sentencing considerations in the case at hand, and whether the guideline at issue exemplifies the Sentencing Commission’s exercise of its characteristic institutional role, imposing a 72-month sentence, rather than recommended Sentencing Guidelines range of 210 to 260 months based primarily on defendant’s offense conduct and characteristics in transporting and possession of child pornography prosecution, and finding that § 2G2.2 did not exemplify the Sentencing Commission’s characteristic institutional role of careful study and empirical analysis). See also and compare, United States v. Rowan, II, 530 F.3d 379, 380-81 (5th Cir. 2008) (Court of Appeals finding on remand from Supreme Court that there was no significant procedural error in the district court’s imposition of a non-Guideline 60-month period of supervised release, rather than the guidelines’ recommended 46 to 57 months imprisonment, based primarily on defendant’s offense conduct and characteristics in sentencing defendant who pleaded guilty and was convicted of possession of child pornography, finding that the district court properly calculated the Guideline range, heard arguments concerning appropriate sentences, and meticulously considered the statutory sentencing factors).

The problem, or more aptly stated, the absurdity, of the application of § 2G2.2 and other related Sentencing Guidelines to child pornography prosecutions was clearly demonstrated in Stabenow’s article when the author gave several examples of typical defendants in mine run child pornography prosecutions and then compared the results of the recommended sentencing ranges under the Sentencing Guidelines in those cases to cases involving defendants who actually molested children.

The flaw with U.S.S.G. § 2G2.2 today is that the average defendant charts at the statutory maximum, regardless of Acceptance of Responsibility and Criminal History. As noted by the Guidelines Commission, there are “several specific offense characteristics which are expected to apply in almost every case (e.g. use of a computer, material involving children under 12 years of age, number of images).” See Amendment 664 to United States Sentencing Guidelines, (November 1, 2004). The internet provides the typical means of obtaining child pornography, resulting in a two-level enhancement. See U.S.S.G. § 2G2.2(b)(6). Furthermore, as a result of internet swapping, defendants readily obtain 600 images with minimal effort, resulting in a five-level increase. See U.S.S.G. § 2G2.2(b)(7)(D). The 2004 Guidelines created an Application Note defining any video clip as creating 75 images. See U.S.S.G. § 2G2.2, App. Note 4(ii). Thus one email containing eight three-second video clips would also trigger a five-level increase. Undoubtedly, as the Commission recognized, some of these images will contain material involving a prepubescent minor and/or material involving depictions of violence (which may not include “violence” per se, but simply consist of the prepubescent minor engaged in a sex act), thereby requiring an additional six-level increase. See U.S.S.G. § 2G2.2(b)(2),(4). Finally, because defendants generally distribute pornography in order to receive pornography in return, most defendants receive a five-level enhancement for distribution of a thing of value. See U.S.S.G. § 2G2.2(b)(3)(B). Thus, an individual who swapped a single picture, and who was only engaged in viewing and receiving child pornography for a few hours, can quickly obtain an offense level of 40. Even after Acceptance of Responsibility, an individual with no prior criminal history can quickly reach a Guideline Range of 210-262 months, where the statutory maximum caps the sentence at 240 months. See U.S.S.G. § 5G1.1(a).

The results are illogical; Congress set the statutory range for first time distributors as five to twenty years. Congress could not have intended for the average first time offender with no prior criminal history to receive a sentence of 210 to 240 months. An individual with a Criminal History Category of II faces a Guideline range of 235 to 240 months, and any higher Criminal History score mandates the statutory maximum. These result runs contrary not only to Congressional will, but also to a principal Guideline policy – providing harsher penalties to individuals with more significant Criminal History scores while still retaining an incentive for pleas at all Criminal History levels.

Let us examine the results of these Congressionally directed and influenced changes as they apply to two hypothetical, but statistically typical defendants. Quoted statistics are derived from the 2007 Sourcebook.

Defendant #1

Convicted of distributing child pornography. Sentenced pursuant § 2G2.2.

Specific Offense Characteristics:

Possessed a picture depicting a child under the age of 12 (96.2%)

Used a computer (96.8 % of defendants)

Possessed one picture involving bondage (63.2%)

Emailed 5 pictures to another person in expectation of getting 5 pictures back (49.4% of defendants receive some type of distribution enhancement)

Possessed four short movie clips and ten pictures resulting in a calculated 310 pictures (53.6 % had greater than 300, 85.5% had greater than 10)

Defendant #1 has no criminal history and has never abused or exploited a child. He pleads guilty in a timely fashion and receives the maximum standard reduction for acceptance of responsibility.

Using the chart provided at Appendix A, we can easily calculate his Guideline Range:

  • April 30, 1987: 12-18 months
  • November 1, 1991: 21-27 months
  • November 27, 1991: 27-33 months
  • November 1, 1996: 41-51 months
  • November 1, 2000: 70-87 months
  • April 30, 2003: 108-135 months
  • November 1, 2004: 188-235 months

Percentage increase in the low end of the Guideline Range after Acceptance since 1987: 1,567%.

Actual increase in the low end of the applicable Guideline Range since Congress directly, and repeatedly, began increasing the Guidelines: 167 months.

If we simply add the extra 10 second movie clips to this collection, defendant #1 charts as follows:

  • April 30, 1987: 12-18 months
  • November 1, 1991: 21-27 months
  • November 27, 1991: 27-33 months
  • November 1, 1996: 41-51 months
  • November 1, 2000: 70-87 months
  • April 30, 2003: 121-151 months
  • November 1, 2004: 210-262 months

This would result in a 1750% increase, or a 198 month increase over a defendant sentenced for the same conduct on October 30, 1991.

Defendant #2

Convicted of possessing child pornography. Sentenced pursuant to § 2G2.2.

Specific Offense Characteristics:

Possessed a picture depicting a child under the age of 12 (93.5%)

Used a computer to obtain the image (93.1%)

Had one disk containing two movie files and 10 pictures, equating to 160 pictures (38% had at least 150 pictures, 63.1% had greater than 10 images) Defendant #2 has no criminal history and has never abused or exploited a child. He pleads guilty in a timely fashion and receives the maximum standard reduction for acceptance of responsibility.

Using the chart provided at Appendix A, Defendant #2 receives this Guideline Range:

  • April 30, 1987: No punishment – not illegal
  • November 1, 1991: 6-12 months
  • November 27, 1991: 12-18 months
  • November 1, 1996: 21-27 months
  • April 30, 2003: 30-37 months
  • November 1, 2004: 41-51 months

Percentage increase in the Total Offense Level after Acceptance since 1991: 683% Increase in the low end of the applicable Guideline Range since Congress directly, and repeatedly, began increasing the Guidelines: 41 months.

A comparison of defendant #1’s case to the Guidelines for two similar offenses demonstrates the absurdity of this result.

First consider the hypothetical of a man who, in 2006, contacted a twelve year-old girl over the internet. Using his age and experience, he convinced her to meet, and the two engaged in repeated sex. U.S.S.G. § 2G1.3(a) (since amended to be made consistent with congressionally initiated changes of the Adam Walsh Act) established a base offense level of 24 for the offense. After a two-level enhancement for unduly influencing the child under U.S.S.G. §2G1.3(b)(2), a two-level enhancement for use of the computer (b)(3), and a two-level enhancement for commission of a sex act (b)(4), the final offense level would be 30. After Acceptance, the Guideline range for this Category I offender would be 70-87 months.

Consider next the aggravated case of Joe Champion, as discussed at United States v. Kane, 470 F.3d 1277 (8th Cir. 2006). Mr. Champion paid to have a mother hold down her nine-year-old child while Mr. Champion raped the young girl twice a week for two years. During these rapes, the child experienced such trauma she passed out. The damage to the child physically and emotionally is unimaginable. Using the Guidelines, applying all enhancements, and granting only Acceptance of Responsibility, the court determined the Guideline range was 151-188 months. Id. at 1282.

That the Guidelines would mete out the most severe punishment for the least egregious of these three offenses requires some correction. Defendant #1’s Guideline range is 450% higher for trading pornography than for the man who actually coerces a young child into sex. Defendant #1 faces a Guideline range 140% higher than the man who paid to rape a prepubescent child over 200 times. Id. at 1279. Such a result either means that the entire Guideline system is bunk, or it is an indication that the stacked enhancements resulting from the Protect Act result in sentences that are greater than necessary to satisfy sentencing purposes.

Stabenow, Deconstructing the Myth of Careful Study: A Primer on the Flawed Progression of the Child Pornography Guidelines, at pp. 23-26 (Emphasis added). It is respectfully submitted that no advisory Sentencing Guidelines with such a suspect lineage and preposterous impact is deserving of any deference by a sentencing court, or by any court trying to impose a fair and just sentence.

Pursuant to 18 U.S.C. § 3553(a), sentencing courts are required to “impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in [§ 3553(a)(2)].” (Emphasis added). The sentencing goals the court must consider in determining the ultimate sentence to be imposed set out in § 3553(a)(2) are as follows:

(2) [T]he need for the sentence imposed –

  • (A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;
  • (B) to afford adequate deterrence to criminal conduct;
  • (C) to protect the public from further crimes of the defendant; and
  • (D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner.

In § 3553(a), sentencing courts are also directed to consider, besides the Sentencing Guidelines themselves, (1) the nature and circumstances of the offense and the history and characteristics of the defendant; (2) the kinds of sentences available; (3) the need to avoid unwarranted sentencing disparities among defendants with similar records who have been found guilty of similar conduct; and (4) the need to provide restitution to any victims of the offense.

Any defendant facing possible prosecution and sentencing for violating federal child pornography laws should be aware of the many problems related to sentencing in this area and his or her defense lawyer must be prepared to aggressively fight for a significantly lower sentence than the Sentencing Guidelines inevitably will recommend. In many cases, almost all of the factors listed in § 3553(a) will mitigate strongly for a much lower sentence than recommended by the now discredited, and often disregarded, applicable Sentencing Guidelines. See, Riley, supra (“Although advisory, the Sentencing Guidelines are typically afforded a measure of deference. Section 2G2.2 has, however, been the subject of recent judicial criticism which weighs against imposing a sentencing within the Guideline recommendation.”).

Defendants being prosecuted and sentenced for child pornography in federal court need experienced and expert legal counsel to successfully navigate the many recent changes in federal sentencing law and the anticipated changes in the child pornography Sentencing Guidelines. The failure to fully understand the Sentencing Guidelines and recent applicable federal case law could prove catastrophic, and result in significantly longer sentences for a federal defendant.

Experienced Florida certified criminal eefense attorney

This web site has been designed to provide educational information only and is not intended to offer legal advice. Every case is unique and outcomes will vary depending upon the facts and legal issues of your case. Please do not make any decisions about any legal matter without consulting with an attorney first. There is no Attorney Client relationship formed by any use of the information provided

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