Distribution Enhancements in Child Porn Cases

The Fifth Circuit recently issued an opinion in which it looked at the sentencing enhancement for distribution of child pornography for a non-pecuniary thing of value under U.S.S.G. § 2G2.2(b)(3)(B).  The Fifth Circuit claims that United States v. Groce, No. 14-50272-CR (PDF) happens to be the first opinion which the Fifth Circuit has designated as “published” involving this enhancement.

The appellant in this case pleaded guilty to one count of receiving child pornography under 18 U.S.C. § 2252(a)(2) and his guidelines sentence was calculated at 360 months; he was ultimately sentenced to the statutory maximum sentence of 240 months.  During his appeal, he argued in part that the enhancement for distribution pursuant to 2G2.2(b)(3)(B) should not have applied because he never distributed child pornography.  Challenging this enhancement was a worthy endeavor because application of the enhancement results in a five-level increase in the number of months to which a person can be sentenced.

Federal Sentencing, Quickly

Sentencing in the federal system is controlled by the district court judge, who must consult the United States Sentencing Guidelines.  The Guidelines, in turn, are promulgated by the Sentencing Commission, who are tasked by Congress to develop fair and effective sentences for all federal crimes, in an effort to avoid sentencing disparities across the country.  From time to time, the Sentencing Commission will determine that the Guidelines it promulgates are not, in fact, fair, and will amend the Guidelines to reflect that determination. Most recently, the Guidelines for controlled substances cases have been recalibrated, though the Commission is now looking at the sentencing regime for financial crimes.

Federal Child Porn Sentencing

One area that has not been reexamined are the sentences applied to child pornography cases, even though there has been an enormous amount of criticism from the judiciary regarding the harshness of the sentences imposed in them.

The base offense level for receipt of just one item of child pornography under 18 U.S.C. § 2252(a)(2) is 22. This translates to a range of punishment of 41 to 51 months. These types of cases, however, do not end at the base offense level, and the enhancements which are available are applicable in almost every type of case.  For example: the age of the individual in the material can add 2 levels; distribution can add up to 7 levels depending on the type of or reason for the distribution; material portraying sado-masochistic behavior can add 4 levels (this enhancement is almost always applied even though the material almost never involves stereotypical S&M content); the defendant’s engagement in a pattern of sexual abuse or exploitation can add 5 levels; using a computer can add 2 points (again, this enhancement is almost always applied even though it’s almost always part and parcel of the crime); and the quantity of images can add up to 5 levels.

A five-level increase can add 30 months or more to a sentence; for example, while the base offense level of 22 results in a sentence of 41 to 51 months, an offense level of 27 results in a sentence of 70 to 87 months.

Federal Sentencing, An Example

A table will probably illustrate just how easy it is to take a case involving one image of a child under 12 and calculate hundreds of months as the Guidelines sentence.

Base Offense Level 22 2G2.2(a)(2)
Minor under the age of 12 +2 2G2.2(b)(2)
Distribution for non-pecuniary thing of value +5 2G2.2(b)(3)(B)
Sadistic or Masochistic conduct +4 2G2.2(b)(4)
Pattern of activity involving sexual exploitation +5 2G2.2(b)(5)
Use of computer +2 2G2.2(b)(6)
Total: 40 292-365 months

File-Sharing as Distribution

In Groce, the Fifth Circuit looked at the enhancement applied for distribution, and determined that the use of a file-sharing program meant that distribution was almost a foregone conclusion.

Generally, when a defendant knowingly uses peer-to-peer file sharing software, however, he engages in the kind of distribution contemplated by § 2G2.2(b)(3)(B). A peer-to-peer file sharing program “lets users exchange digital files through a network of linked computers.”  United States v. Richardson, 713 F.3d 232, 233 (5th Cir. 2013), cert. denied, 134 S. Ct. 230 (2013).  By using this software as Groce has, the user agrees to distribute the child pornography on his computer in exchange for additional child pornography. This is precisely the kind of exchange contemplated by § 2G2.2(b)(3)(B). Groce at 3-4.

The court noted that the defendant used a program called Frostwire, and that he knew that other users could access files on his computer, and that by doing so, he therefore would be distributing child pornography. Id. at 5. And since the defendant acknowledged that at least some material on his computer was shared, the court was satisfied that distribution had been demonstrated. In most cases, this makes sense. Most people who use peer-to-peer networking have a decent idea of the quid pro quo nature of file-sharing. This nature also allowed the court to state that sharing for the sake of receiving other material was distribution for non-pecuniary gain.

What makes this case interesting to me is whether the court is creating a presumption that using file-sharing software always establishes distribution. What if the user is a “leech” and turns off the ability of others to access files on his computer, or if no other user–by some quirk of fate–actually accessed his material? The court does not address this question because it did not necessarily need to.  Making this argument undoubtedly would require hiring a highly-skilled forensic expert to examine the hard drive and the network activity of the defendant.