Federal Sentencing Guidelines on Federal Child Pornography cases
Posted on by Michael Lowe.
How the Federal Sentencing Guidelines are applied in a child porn case
Child pornography arrests in Texas are often made by federal agents for violation of federal law. Congress has passed sweeping and specific criminal statutes dealing with child pornography. Found in Title 18 USC 2252 – 2260, they define the actions that constitute child porn crimes (possession; distribution; or receipt):
- 18 U.S.C. § 2251- Sexual Exploitation of Children (Production of child pornography)
- 18 U.S.C. § 2251A- Selling and Buying of Children
- 18 U.S.C. § 2252- Certain activities relating to material involving the sexual exploitation of minors
- (Possession, distribution and receipt of child pornography)
- 18 U.S.C. § 2252A- certain activities relating to material constituting or containing child pornography
- 18 U.S.C. § 2256- Definitions
- 18 U.S.C. § 2260- Production of sexually explicit depictions of a minor for importation into the United States.
These criminal statutes also state the specific punishment to be given for their violation. For instance, Congress defines the punishment as 5-20 years’ imprisonment for receipt of child pornography in 18 USC 2252A.
Federal Sentencing Guidelines Manual
When the defendant faces actual sentencing in a child pornography prosecution, the court will look not only to the federal statutes defining the crime, but to federal sentencing guidelines. They are found in the 2016 U.S. Sentencing Guidelines Manual.
The Manual has been developed by the United States Sentencing Commission, which is an independent agency in the judicial branch composed of seven voting and two non-voting, ex officio members. Both the Sentencing Guidelines and their corresponding policy statements are issued pursuant to 28 USC 994(a).
The federal sentencing guidelines are used in every federal prosecution in the country. They have been adopted in order to have consistency in federal sentences no matter what state or region is involved.
They define general standards to be used in imposing sentences as well as adopting a systematic approach to try and maintain uniformity. It’s debatable how successful these guidelines have been in uniform fairness in sentencing. See, e.g., Demleitner, Nora V., et al. Sentencing Law and Policy: Cases, Statutes, and Guidelines. Wolters Kluwer Law & Business, 2018.
Calculation under the Guidelines Manual
In each case, determining the sentence to impose upon the individual defendant is done by a calculation using the Guidelines Manual. First, the offense level is calculated.
A number of factors work together to determine an overall offense level. Once the offense level is defined, a standardized table is referenced called “the Sentencing Table.” It is found in the Sentencing Guidelines Manual.
The Sentencing Table
Here, the offense level is tied to the criminal history of the offender. From looking at the table using these two areas, there comes the guideline range for that individual defendant’s sentence.
Here is the Sentencing Table from page 428 of the 2016 U.S. Sentencing Guidelines Manual. The criminal history category is found on the top row and the base offense level is found in the far left column.
The base offense level will be calculated first. Then things will be added to this level and if applicable, there may be circumstances that allow for things to be subtracted from the offense level, as well.
For example, the offense level can be reduced by two levels if the Sentencing Guidelines Manual Section 2G2.2(b) is met for someone with a base offense level of 22:
(B) the defendant’s conduct was limited to the receipt or solicitation of material involving the sexual exploitation of a minor; and (C) the defendant did not intend to traffic in, or distribute, such material, decrease by 2 levels.
Calculating the Base Offense Level
The base offense level will be found in the Sentencing Guidelines Manual to correspond to the particular violation. Under the Sentencing Guidelines Manual Section 2G2.2,
(a) Base Offense Level: (1) 18, if the defendant is convicted of 18 U.S.C. § 1466A(b), § 2252(a)(4), § 2252A(a)(5), or § 2252A(a)(7). (2) 22, otherwise.
Let’s consider a defendant facing sentencing for possession of child porn. The guideline for a violation of 18 USC Section 2252(a)(4)(B) is found in the Sentencing Guidelines Manual Section 2G2.2, which defines the base offense level as 18.
Special Offense Characteristics (Adding More Levels)
Things will be added to this base offense level depending upon the circumstances of the individual case. There can be a number of “special offense characteristics,” as defined under Sentencing Guidelines Manual Section 2G2.2(b).
For instance, if the defendant was found in possession of material (images or video files) depicting minors under the age of 12 years, then 2 offense levels are added as a “special offense characteristic.”
Here, in our example, the base offense level (18) combines with the addition (+2) to have a total offense level of 20.
Another two levels are added to the calculation under Section 2G2.2(b)(6) if the offense involved the use of a computer or interactive computer service.
Now, in our example, the offense level rises to 22.
Note: In child porn cases, guideline computations will include consideration of things like the number of images and video files in the possession of the defendant at the time of arrest. For videos, each video file is considered to contain 75 images pursuant to Sentencing Guidelines Section 2G2.2, comment n.6(b)(ii).
So, for example if an individual is found to possess 19 images and 450 video files containing child pornography, then he will be considered to have possessed 33,769 images of child porn. This will increase his offense level by 5 levels according to pursuant to Sentencing Guidelines Section 2G2.2(b)(7):
(7) If the offense involved— (A) at least 10 images, but fewer than 150, increase by 2 levels; (B) at least 150 images, but fewer than 300, increase by 3 levels; (C) at least 300 images, but fewer than 600, increase by 4 levels; and (D) 600 or more images, increase by 5 levels.
In our example, the offense level is now 27.
Other enhancements of the base offense level include prepubescent images (+2); sadistic or masochistic images (+4); and sending images to a minor (+6).
Acceptance of Responsibility (Reducing Offense Levels)
Under Sentencing Guidelines Section 3E1.1(a), (b), offense levels can be subtracted from the calculation if the defendant clearly demonstrates acceptance of responsibility for his offense. From the Manual, page 389:
(a) If the defendant clearly demonstrates acceptance of responsibility for his offense, decrease the offense level by 2 levels.
(b) If the defendant qualifies for a decrease under subsection (a), the offense level determined prior to the operation of subsection (a) is level 16 or greater, and upon motion of the government stating that the defendant has assisted authorities in the investigation or prosecution of his own misconduct by timely notifying authorities of his intention to enter a plea of guilty, thereby permitting the government to avoid preparing for trial and permitting the government and the court to allocate their resources efficiently, decrease the offense level by 1 additional level.
This can be shown during interviews of the defendant by the probation officer (which should take place in the presence of the defense lawyer). It can also be shown in a notice filed by the U.S. Attorney General’s Office, where the federal prosecutor states the defendant qualifies for an additional 1-level reduction for acceptance of responsibility under Sentencing Guidelines Section 3E1.1(b).
Another 1-level reduction can be applied to the calculation as acceptance of responsibility if the defendant has assisted authorities in the investigation or prosecution of the defendant’s own misconduct by timely notifying authorities of the intent to enter a guilty plea pursuant to Sentencing Guidelines Section 3E1.1(b).
In our example, if the defendant meets all three of these acceptance of responsibility reductions, his offense level of 27 is lessened by 3 (27 – 3) to reach an offense level of 24.
For criminal history points, Section 4A1.1 of the Federal Sentencing Guidelines will be referenced.
(a) Add 3 points for each prior sentence of imprisonment exceeding one year and one month.
(b) Add 2 points for each prior sentence of imprisonment of at least sixty days not counted in (a).
(c) Add 1 point for each prior sentence not counted in (a) or (b), up to a total of 4 points for this subsection. §4A1.1 Guidelines Manual (November 1, 2016) ║ 393
(d) Add 2 points if the defendant committed the instant offense while under any criminal justice sentence, including probation, parole, supervised release, imprisonment, work release, or escape status.
(e) Add 1 point for each prior sentence resulting from a conviction of a crime of violence that did not receive any points under (a), (b), or (c) above because such sentence was treated as a single sentence, up to a total of 3 points for this subsection.
A criminal records search will be performed via the FBI’s National Crime Information Center and the DPS’s Texas Crime Information Center databases. Both juvenile adjudications and past criminal convictions will be considered.
From this, a total criminal history score will be calculated. If the defendant has no past criminal history, then he will get a total criminal history score of zero. Under the Sentencing Table, this will establish a Criminal History Category of I.
The Range Of Punishment for a Possession of Child Porn Case in Federal Court
Once the total offense level is calculated and the criminal history category is defined, the Federal Sentencing Table can be referenced to determine the Guideline Imprisonment Range.
The Guideline Imprisonment Range
For instance, if a defendant had a total offense level of 33 and a criminal history category of I, then the Sentencing Table will establish a Guideline Imprisonment Range of 135-160 months, as shown in Zone D of the Table. (see the Table above for reference).
Under Sentencing Guidelines Section 5C1.1(f), the minimum term shall be satisfied by a sentence of imprisonment.
The Guidelines Are Not Mandatory
It is important for defendants to understand these sentencing guidelines are not mandatory. The judge does not have to follow the guidelines.
In 2005, the Supreme Court of the United States ruled the guidelines drafted by the judicially-created Sentencing Commission were not mandatory, and federal judges can use their discretion in what sentence should be imposed in criminal cases. United States v. Booker, 543 U.S. 220, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005).
Federal judges still rely heavily on the Guidelines Manual, however. One key reason here is the federal sentencing guidelines are presumed to be sufficient to satisfy 18 USC 3553.
Departure from the Guidelines: 18 USC § 3553
Under 18 USC § 3553, the factors to be considered in imposing a sentence are defined. Judges are given direction under this law on how to sentence defendants. They are legally required to give a “statement of reasons” explaining why they have imposed a certain sentence on the defendant.
Federal statute 18 USC § 3553 does provide legislative instruction to the judge on when he or she can veer from the Sentencing Guidelines. The judge can depart from a guideline-specified sentence when he or she finds:
“… an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described.” 18 U.S.C. § 3553(b).
If the judge conforms to the Sentencing Table, then he or she has met the legal requirements of this law. Of course, the judge can also decide not to follow the guidelines; this law simply requires that the judge explain his basis for sentencing outside the Sentencing Table.
The federal judge has the power to decide the sentence as he or she thinks best.
In Texas, most sentences imposed in child porn prosecutions still fall within the range suggested by the Sentencing Table. And in every prosecution, the United States Attorney General’s Office will make sure that there is a calculation made under the Sentencing Guidelines that is presented to the judge for the sentencing hearing.
The Sentencing Commission’s Departure Policy
The Sentencing Commission gives guidance on why the Sentencing Guidelines should be followed, as a general rule, by the federal judges as they impose sentence. In the Sentencing Manual, judges are advised at pages 7-8:
- The Commission intends the sentencing courts to treat each guideline as carving out a “heartland,” a set of typical cases embodying the conduct that each guideline describes.
- When a court finds an atypical case, one to which a particular guideline linguistically applies but where conduct significantly differs from the norm, the court may consider whether a departure is warranted. (See, Section 5H1.10, 5H1.12, the third sentence of §5H1.4, the last sentence of §5K2.12, and §5K2.19 as several factors that the court cannot take into account as grounds for departure.)
- With those specific exceptions, however, the Commission does not intend to limit the kinds of factors, whether or not mentioned anywhere else in the guidelines that could constitute grounds for departure in an unusual case.
The Commission has adopted its departure policy for two reasons. As explained in Chapter One of the Sentencing Manual:
- It is difficult to prescribe a single set of guidelines that encompasses the vast range of human conduct potentially relevant to a sentencing decision. The Commission also recognizes that the initial set of guidelines need not do so. … By monitoring when courts depart from the guidelines and by analyzing their stated reasons for doing so and court decisions with references thereto, the Commission, over time, will be able to refine the guidelines to specify more precisely when departures should and should not be permitted.
- The Commission believes that despite the courts’ legal freedom to depart from the guidelines, they will not do so very often. This is because the guidelines, offense by offense, seek to take account of those factors that the Commission’s data indicate made a significant difference in pre-guidelines sentencing practice.…
Defense Lawyer Can Win Against Harsh Application of Sentencing Guidelines
Today, there is a national effort being made to fight against the harsh sentences that are imposed in child pornography sentences where the Sentencing Guidelines are used as the basis for the punishment.
Families Against Mandatory Minimums (FAMM) report the length of federal child pornography sentences has increased 500% in the last 15 years. FAMM’s efforts seek to help situations where the Guidelines “produce unintended or strange consequences,” such as a teenager “sexting” photos of his naked, underage girlfriend to others via his cell phone (child pornography production and distribution); or a 22 year-old man who makes a home video of consensual sex with his 17 year-old girlfriend and downloads it to his computer, with his girlfriend’s knowledge and with no intent to share the video with others (child pornography production).
- From the Sentencing Manual alone, the base offense level used to be 13 in the Guidelines; now, it’s 18.
- There’s an automatic boost of 2 offense levels if the defendant used a computer. And, most child pornography cases today involve the internet.
- The calculation of videos into distinct images boost the number of photos astronomically and ups the offense level by 5 levels.
However, a zealous advocate can work hard to fight for defendants facing child pornography charges from getting unduly harsh sentences despite the Sentencing Guidelines. Each case is unique. However, as FAMM points out, the reality of “sexting” cases and other uses of social media and digital imagery today, particularly among young adults does not jive with the justice sought to be imposed within the Sentencing Commission’s framework.
Child Porn Case Study: Defense by Michael Lowe Results in No Prison Time
As one example, I recently defended a young man who was facing serious time behind bars based upon the Sentencing Guidelines. The case was before the Northern District of Texas, Fort Worth Division.
After negotiating a plea agreement with the federal prosecutor and a presentation of evidence to the court at the sentencing hearing (including expert opinion on the stand), the judge ruled outside the Sentencing Table.
In fact, from the bench, the judge explained to my client, “I’ve given you the biggest break I’ve ever given in the 26 years I’ve been on this bench.”
Read it here:
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