Child Pornography Sentencing Could See Big Change in 2016

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Erica L. Mynarich

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Adapted from [2016 Update] New Child Pornography Sentencing Guidelines

  • A new amendment could have a big impact on child pornography sentencing guidelines
  • Set to begin November 1, 2016; will the new guideline language curb the application of the enhancement?
  • USSG New Child Pornography Sentencing Guidelines [Full Text of Amendment]

    In the Western District of Missouri, most child pornography possession and receipt/distribution cases involve a defendant who used a peer-to-peer file-sharing program, such as Limewire, FrostWire, Ares, or BitTorrent. When the Probation Office is calculating these defendants’ United States Sentencing Guidelines, they consistently apply USSG § 2G2.2(b)(3)(B)’s 5-level enhancement on the grounds that the use of the file-sharing program proves “distribution for the receipt, or expectation of receipt, of a thing of value.”

    However, the five-level enhancement should only be applied when a defendant’s offense involved distribution of child pornography “for the receipt, or expectation of receipt, of a thing of value.” USSG § 2G2.2(b)(3)(B) (emphasis added). This means “any transaction, including bartering or other in-kind transaction, that is conducted for a thing of value, but not for profit.” USSG § 2G2.2, comment. (n.1) (emphasis added).

    Some file-sharing programs allow users to opt-in or opt-out of sharing. Other programs mandate sharing. It is clear that if a program mandates sharing, then users are sharing their images in order to be able to use the program to also get access to the images of others. But if the program allows the user to opt-in or opt-out, the user’s reason for sharing images (whether for a thing of value or just gratuitously) is less clear. As one Eighth Circuit judge has pointed out, “[i]f a file-sharing program allows the user to download child pornography from other computers, whether or not the user makes his own images available to other parties, then the user’s distribution is gratuitous. It is not for the receipt of a thing of value, because it is unnecessary to the receipt of a thing of value.” United States v. Bastian, 603 F.3d 460, 467-68 (8th Cir. 2010) (Colloton, J., concurring).

    On April 28, 2016, the United States Sentencing Commission promulgated amendments to the Sentencing Guidelines that will become effective November 1, 2016 unless Congress takes action to the contrary. One change to the child pornography guidelines is to the language of USSG § 2G2.2(b)(3)(B)’s 5-level enhancement.

    The new language of §2G2.2(b)(3)(B) may reduce the number of cases in which the enhancement is applied. Under the new language, the enhancement applies only if “the defendant distributed in exchange for any valuable consideration,” but not for pecuniary gain. The new guidelines commentary defines this new language to mean “the defendant agreed to an exchange with another person under which the defendant knowingly distributed to that other person for the specific purpose of obtaining something of valuable consideration from that other person, such as other obscene material, preferential access to obscene material, or access to a child.” (emphasis added). This “for the specific purpose of obtaining something” language seems to encompass Judge Colloton’s point that the distribution must not be merely gratuitous for the 5-level enhancement to apply.

    We will have to wait until after November to see if the new language actually curbs the application of the enhancement.

    References
    United States Sentencing Commission
    United States v. Bastian

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