child porn defense

Possession of Child Pornography | Federal Criminal Defense Attorney

What is Child Pornography?

Child pornography, under federal law, is any visual depiction of sexually explicit conduct involving a person under the age of 18.

What are the Laws on Child Pornography?

Federal law criminalizes three distinct charges under the Child Pornography statutes:

Child Pornography Sentencing

The federal government’s approach to sentencing in child pornography cases is less intuitive than you may expect.

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.

United States Sentencing Guidelines in Child Porn Cases

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.

Technology and the Dramatic Increase in Child Pornography Prosecutions and Sentences

Over the last 20 years federal sentences related to the receipt of child pornography have increased dramatically. For example, in recent years prison sentences imposed in nearly 97% of federal child pornography cases. That’s 20% higher than in 1996. Along with an increase in prison sentences, there has also been an increase in federal prosecution for child pornography offenses. In fiscal year 2002, there were roughly 450 child pornography prosecutions nationwide. In 2017, there were nearly 1600.

The increase in senences can be attributed to the United States Sentencing Guidelines which has undergone obscure, yet significant, revisions over the last two decades. Such changes have recommended much more severe penalties for similar conduct.

While the Guidelines are no longer mandatory and federal judges have far more sentencing discretion since the United States v. Booker decision, it would be a mistake to discount the enormous impact the Guidelines still have upon federal defendants. The vast majority of sentences fall within the applied Guideline range. In fact, all defendants must receive a Guideline calculation which the sentencing judge must at least consider in every case. Put simply, the Guidelines are still the most relevant and powerful sentencing factors in most federal sentences.

Whether the upward sentencing trend in child pornography cases is sensible depends upon the normative position a given person feels regarding such cases and the proliferation of such images in the internet age. However, this trend is not entirely caused by normative factors. Instead, technology may be a significant factor.

While this upward sentencing trend may be subject to debate, the factors leading to this upswing are even more controversial. Put simply, the higher sentences are based upon simple criteria that are completely at odds with modern tools for the acquisition and consumption of media in the internet age.

Factors Used to Justify Longer Sentences

There are 3 primary reasons why federal child pornography sentences have grown dramatically.

  • First, the base offense level envisioned under the United States Sentencing Guidelines (U.S.S.G., or the Guidelines) has increased from 13 to 18, and in some instances, 22.
  • Second, the Guidelines allow a 2-level increase for the use of computers in a child pornography case.
  • Finally, the Guidelines have increased the maximum offense-level enhancement from 2 to 5 based upon content quantity. This final factor is also impacted by an arbitrary 75:1 video-to-photo-ratio applied regardless of the video length.

Current Guideline Scheme

Each offense under the Guidelines begins with a starting point, known as the ‘base offense level.’ In addition, akin to drug quantity in federal narcotics cases, the Guidelines envision federal sentences for child obscenity cases be increased based upon the amount of pornography received/possessed/distributed.

Base Offense Level

As stated above, each federal offense begins with a Base Offense Level. In a very real sense, this number represents the bare minimum punishment for each federal offense. In 1996, the base offense level in child pornography cases was 13. Today, it is either 18 or 22. To put this in perspective, a person with no criminal history starts with a Guideline recommendation of 12-18 months imprisonment under a Base Offense Level of 13. However, a Base Offense Level of 18 starts the same person at a recommended range of 27-33 months. At a Base Offense Level of 22, that same person starts out with a recommended range of 41-51 months.

The first ramification is straight-forward. Defendants now face a starting point that is 2 to 3 times higher. It is also important to recognize that penalty range increments increase with each offense level. In other words, the difference between a minimum and maximum sentence under the Guidelines is 6 months at an offense-level of 13, whereas it is 10 months at an offense-level of 22.

It is even more important to recognize that this Base Offense Level increase, while significant, is actually the least drastic factor causing the upward trend in child pornography cases.

Use of Computer Enhancement

Guideline recommendations for these crimes frequently include enhancements based upon a finding that an offense involved the use of a computer. Under the current Guidelines, if a child pornography case involves the use of a computer, then the offense-level increases by 2. In fact, even as early as 2002 nearly 90% of child pornography cases involved the use of a computer.

While this enhancement appears logical at first blush, any common-sense attribution of historical context or social reality exposes this enhancement might as well be part of the Base Offense Level. In step with the rapid increase of federal child pornography prosecutions, American usage of the Internet has exponentially increased between 1996 and 2017. Below are a few statistics regarding adult internet usage during that time period.

internet use

Simple data relating to the average data usage of American adults lead to the obvious conclusion that the ‘use of computer’ enhancement is able to be tacked onto nearly every federal sentence.

In other words, which it purports to be an enhancement, even federal prosecutors would agree, it is an enhancement that will be used in virtually every case.

In 1996, the primary medium for the dissemination of child pornography was the postal system. At that time, use of a computer to send or receive child pornography images would be truly sophisticated and unique. However, the internet today is the primary medium for transmission of media and information, not the postal system. Put simply, enhancing obscenity offenses for computer usage would be similar to increasing counterfeiting sentences for the use of ink.

Put a different way, application of this enhancement in 2017 would be akin to enhancing narcotics distribution sentences based upon the use of a phone or vehicle. Likewise, this enhancement would be analogous to increasing a fraudster’s penalty because he or she used email to communicate a lie as opposed to the telephone.[1] Ultimately, this enhancement simply serves to increase every child pornography sentence.

Adding this enhancement to the Base Offense Levels above quickly expands sentences. For example, increasing an offense level from 13 to 15 raises the penalty range from 12 – 18 months to 18 – 24 months. An offense level jump from 18 to 20 raises the penalty range from 27 – 33 months to 33 – 41 months. An offense level jump from 22 to 24 raises the penalty range from 41 – 51 months to 51 – 63 months. Consequently, sentences increased between 6 months to a year because defendants use the basic technology to receive child pornography images. In terms of proportion, the use of a computer could itself add 20-30% in incarceration, before other enhancements are applied.

Ultimately, the largest increase comes from the content quantity enhancement.

Content Quantity Enhancement

Just as drug-case sentences are largely based upon the quantity of narcotics involved in a drug crime, child pornography cases are significantly driven by the number of images involved. The reasoning behind these types of enhancements is that quantity often reflects the amount of sophistication and energy a given offender has expended when committing his or her offense. However, in the digital age such quantities do not rationally relate to the sophistication or vigor of a given offender.

Strikingly, the Guidelines have increased the maximum image enhancement from 2 levels to 5 levels in the last 20 years. Even more striking is that the Guidelines also treat videos, regardless of length, as having the equivalent value of 75 images. The 5-level enhancement applies to a child pornography defendant having received 600 or more images. This means that 8 videos that last 3-5 seconds each would result in such an increase.

The 75:1 ratio harkens to other controversial mathematical conversions used in the Guidelines. In the past, the Guidelines were heavily criticized for attributing 100 times the quantity conversion for crack cocaine when compared to powder cocaine. In other words, 1 gram of crack cocaine received the same Guideline treatment as 100 grams of powder cocaine. Currently, similar criticisms exist regarding the Guidelines’ treatment of methamphetamine relative to other substances. Under the Guidelines, pure methamphetamine, or ice, (having a purity of 85% or higher) is equivalent to 10 times conventional methamphetamine.

Arguably, the digital age has increased the accessibility and availability of child pornography images. However, the attribution of quantity levels to child pornography voyeurs, as opposed to producers and traffickers, raises significant questions as their efficacy in a voyeur-based child pornography prosecution.

Regardless, in the digital age it is difficult to characterize an internet-user’s amassment of images as creating the status of a collector.

Before smart phones, individuals collected varying amounts of CDs, cassette tapes, and vinyl records. Some people owned less than 10 CDs whereas others may have owned 100s or 1,000s. However, such numbers are not comparable to today.

Today, most baby-boomers likely own 100s or even 1,000s of songs in a digital format on a smart device. They would hardly be considered music collectors. They certainly would not be considered sophisticated music collectors.

Considering video footage, in the Youtube and Snapchat age, most teenagers likely view more than 10 videos a day. Some are seconds long, while others are likely minutes long. Many adults likely consume a similar amount of media. Once again, this would not make such teenagers or adults particularly unique.

The sheer volume of video uploads to Youtube coincides with these assertions. In 2016, 3.5 million photos were viewed every minute.[2] Youtube has 1 billion active users every month.[3] On average, 4 billion Youtube videos are viewed in a day.[4] 60 hours of video are uploaded every minute, or one hour of video is uploaded to YouTube every second. This date would suggest that a user consumes an average of 4 Youtube videos daily.

This does not support the contention that child pornography offenses should not be prosecuted. Rather, the volume of adult internet usage combined with the popularity and massive video available through the internet, it does not stand to reason that someone who has viewed 600 images or 8 videos within a given time frame, whether it be a year, a month, a week, or even a day, is qualitatively more sophisticated or vigorous than other offenders. Put simply, the content quantity enhancement uses a yardstick that is not applicable in modern society.

Currently, the Guidelines treat a 5-second video as having the same value as 75 images and they treat a viewer of 8 short video clips (3 to 5 seconds-long) the same as a longtime collector of child pornography. As is the case with the computer usage enhancement, the content quantity enhancement represents an across-the-board increase in child pornography sentences.

Taking the originally referenced Base Offense Level of 13, 18, and 22 and adding the virtually universally applied computer usage enhancement, the consequences of a 5-level content quantity increase will be added to offense levels 15, 20, and 24.

Increasing an offense level from 15 to 20 raises the penalty range from 18 – 24 months to 33 – 41 months. An offense level jump from 20 to 25 raises the penalty range from 33 – 41 months to 57 – 71 months. An offense level jump from 24 to 29 raises the penalty range from 51 – 63 months to 87 – 108 months. Put simply, sentences increased between 15 months to 3 years because defendants used the standard image delivering mechanism (the internet) to receive what is a fairly number of images in a given time period. Further, offense levels as low as 20 or even 24 are not realistic at this point in any case.

Ultimately, Guideline calculations have dramatically increased from a possible floor of 12 – 18 months to a likely floor of 60 months. However, this increase is largely based upon technology and modern methods of media consumption rather than defendant sophistication or vigor.

Sentencing Impact of Computer and Quantity Enhancements Over Time

2002

In 2002, USSG 3G2.2 and 2G2.4, the Guidelines applicable to the receipt and distribution of child pornography, were applied in 449 federal sentences. Of those, more than 71% applied the only enhancement based upon number of images, which was 2.

Also, Courts applied an enhancement for the use of a computer between 89.3% and 91.1% of the time.

2002 drug cases

2015

In 2015, 3G2.2, the guideline applicable to the receipt and distribution of child pornography, was applied in 1,603 federal sentences. Of those, more than 76% applied the maximum enhancement based upon number of images, which is 5. In contrast, less than 9% applied the lowest enhancement, which is 2. Put simply, Courts found that this type of offense involved less than 300 images 9% of the time.

Also, Courts applied an enhancement for the use of a computer 94.4% of the time.

2015 federal cases

2016 child porn cases

Possession of Child Pornography Defense

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.

Contact us

Call us at (817) 203-2220 for a complimentary strategy session. Our team of former prosecutors and Board Certified Criminal Lawyers are here to help. During this call we will:

  • Discuss the facts of your case;
  • Discuss the legal issues involved, including the direct and collateral consequences of the allegation; and
  • Discuss the defenses that apply to your plan and in general terms discuss our approach to your case.

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Footnotes

[1] Actually, use of wires (phone or computer) is a separate but similarly punished offense under the Guidelines. See 18 USC 1341, 1343 and U.S.S.G 2B1.1 and 2C1.1.

[2] https://www2.deloitte.com/uk/en/pages/press-releases/articles/3-point-5-million-photos-shared-every-minute.html

[3] https://fortunelords.com/youtube-statistics/

[4] http://www.jeffbullas.com/35-mind-numbing-youtube-facts-figures-and-statistics-infographic/

About the Author

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.