child porn defense

Federal Prosecution of Child Porn Cases

How the United States Sentencing Guidelines Apply in Child Porn Cases

In the federal system, the receipt or possession of child pornography is illegal. Obviously, this is not breaking news. In fact, possession of child pornography is illegal in every state. However, how the federal government approaches this conduct may be less intuitive than expected.

First, under Title 18 section 2252 and 2252A, Congress distinguished between mere possession and the receipt of child pornography. The former is punishable by 0-10 years imprisonment and the latter is punishable by 5-20 years imprisonment. Receipt of child pornography is defined as the shipment, transport, sale, or movement of such material in interstate commerce.

Of course, nowadays almost all of such material is possessed via computer, which means that every offense could be defined as receipt of child pornography. In essence, in modern times the receipt/possession dichotomy is a distinction without a difference. Nonetheless, both offenses exist.

While the statutes give us the overall statutory punishment ranges, the actual sentencing range in most cases comes from the United States Sentencing Guidelines, which seek to apply general standards and a mathematical approach to achieve consistency in federal sentences nationwide. The Guideline applicable to child pornography cases is USSG § 2G2.2.

As with all guideline calculations, various factors contribute to an overall offense level. That level is then applied to a grid which also considers the individual criminal history of the offender. These scores dictate the guideline range.

It is important to understand that the Guidelines are not mandatory. Nonetheless, they play a major role in the lives of those convicted of federal offenses. It is easiest to think of a Base Offense Level as the starting point for an offense under the Guidelines. After the Base Offense Level is determined, then a multitude of variables, known as Specific Offense Characteristics, either increase (or enhance) or decrease the level. Persons facing the Guidelines should assume that enhancements far outnumber decreases.

Application of the United States Sentencing Guidelines to Child Porn Cases | Child Porn Defense

The base offense level for receipt or possession of child pornography is either 18 or 22, usually it is 22.

In terms of enhancements, several factors can increase a defendant’s sentence.
The following are enhancement characteristics.

  • Prepubescent images: Images depicting children 12 years old or younger result in a 2 level increase.
  • Number of images: The involvement of more than 10 images can result in a 2-5 level increase depending on the actual total. Also understand that a single video counts as 75 images.
  • Sadistic or Masochistic Images: 4 level increase.
  • Sending images to a minor: 6 level increase.
  • Use of a computer: 2 level increase.

Other enhancements involve the use of images to entice a child to travel across state lines to participate in sex acts or the pecuniary gain a defendant may receive from distributing child pornography.

There is one possible decrease. If a defendant merely possesses and does not traffic in child pornography, then a 2 level decrease may be available.

The bottom line is that child pornography cases can quickly amass substantial guideline suggestions to judges based on factors that would otherwise seem part and parcel of cases that fit within the heartland of typical child pornography cases. Put simply, the federal system doles out significant sentences in child pornography cases.

To put it in perspective, even someone with no criminal history is looking at a minimum of 41 months incarceration at level 22. At level 32, the minimum is 121 months, or 10 years.

Defenses to Possession of Child Pornography

The defense of child pornography charges can be extremely difficult, not just because of the stigma attached to the allegation, but also due to harsh sentences for those guilty of the allegations. Still, there are a number of defenses that might apply. First, the images must depict a minor. Understand that federal law criminalizes images of a person who is 17 years old, even though a 17-year-old may be able to legally consent to sex in a given state. Second, the image must be of a child, as opposed to a computer generated depiction of a child. Similarly, the government must be able to show the image traveled through interstate commerce.

Our attorneys include former federal prosecutors who will be able to discuss how the federal government has a database on hashes that correspond to known provable images of child pornography. We also know where the government has weaknesses in proving these cases. The government also has to prove sexually explicit conduct, as the term is defined, and not merely images of nudity. Finally, the government often uses sophisticated (and sometimes questionable) means of electronic surveillance or fact-finding that might give rise to challenges to the admissibility of the evidence the government has. If you or a loved one has been charged with possession of child pornography in any federal court in the United States, call us at (817) 203-2220.

About the Author
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Benson Varghese

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Benson Varghese is the Managing Partner of Varghese Summersett PLLC. He is a state and federal practitioner who has handled thousands criminal cases and taken over 100 cases to trial by jury. Benson is frequently called upon to handle cases that require a high degree of knowledge in technology, scientific evidence, forensic evidence, as well as serious intoxication cases. The lawyers at Varghese Summersett PLLC exclusively handle criminal defense matters.