State and Federal Possession of Child Pornography Charges

possession of child pornography

Varghese Summersett offers aggressive child pornography defense in Tarrant County at the state and federal level. In fact, our firm was one of the first in the country to go to a federal jury trial over the now infamous Operation Pacifier. Possession of child pornography is a violation of both Texas state law and federal law.

Federal Possession of Child Pornography Laws

In the federal system, 18 USC 2252 makes the receipt, distribution, and possession of child pornography a federal offense. Producing child pornography is a federal offense under 18 USC 2251. Enticing a child to engage in prostitution or engage in sexual activity is an offense under 18 U.S.C. 2422. For purposes of most federal offenses, a child or “minor” is a person under the age of 18.

Federal Child Pornography Sentencing Ranges

The federal sentencing guidelines, although they are only advisory and not mandatory, set out heavy sentences for individuals who are found guilty of a child pornography related offense. There are a number of ways to prosecute child pornography at the federal level:

Possession of child pornography is punishable by up to 10 years for a first-time offender. 

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Receipt or distribution of child pornography carries with it a punishment range of 5 to 20 years for first-time offenders.

Production of child pornography carries a basic punishment range of 15 to 30 years in prison for a first-time offender. A person who has been previously convicted of production of child pornography may face a mandatory life sentence.

Enticing a child to engage in prostitution or engage in sexual activity carries a punishment range of 10 years to life. 

Federal Child Pornography Sentencing Ranges

OffenseMandatory MinimumStatutory MaximumStatutes
Possession of Child PornographyNone10 years18 USC 2252, 2252A
Possession of Child Pornography (with prior sex conviction)10 years20 years18 USC 2252, 2252A
Transportation, receipt, distribution, possession with the intent to distribute or sell child pornography5 years20 years18 USC 2252, 2252A
Transportation, receipt, distribution, possession with the intent to distribute or sell child pornography (with prior sex offense)15 years40 years18 USC 2252, 2252A
Possession of obscene visual of sexual abuse of a childNone10 years18 USC 1466A
Possession of obscene visual of sexual abuse of a child (with prior sex offense)10 years20 years18 USC 1466A
Receipt distribution or production of obscene visual of seuxal abuse of children5 years20 years18 USC 1466A
Receipt distribution or production of obscene visual of seuxal abuse of children (with prior)15 years40 years18 USC 1466A

Federal Child Pornography Sentencing Considerations

As a result of the high guideline sentencing ranges for these offenses, defense attorneys often ask the sentencing court to consider 18 U.S.C. 3553(a) factors in hopes of obtaining a non-guideline sentence.

Supervised Release after a Federal Child Pornography Sentence

A person convicted in a federal child pornography case may have to report to a federal probation officer for the rest of his or her life. 18 USC 3583(k) authorizes the court to impose a lifetime of supervised release after getting out of federal prison. 

Don’t Miss: The Application of Federal Sentencing Guidelines in Child Porn Cases

Possession of Child Pornography Charges in Texas

In Texas, pursuant to Penal Code Section 43.26, Possession of Child Pornography is a third-degree felony, carrying a punishment range of 2 to 10 years in prison. Possession with the Intent to Promote Child Pornography (by selling, exhibiting, sharing etc) is a second-degree felony, which carries a punishment range of 2 to 20 years in prison. The affirmative defenses under Penal Code Section 43.25(f) also apply to Possession of Child Pornography cases in Texas:

It is an affirmative defense to a prosecution under this section that:

(1) the defendant was the spouse of the child at the time of the offense;

(2) the conduct was for a bona fide educational, medical, psychological, psychiatric, judicial, law enforcement, or legislative purpose; or

(3) the defendant is not more than two years older than the child.

If there is a question before the jury as to whether or not the person depicted in the recording is 18, Section 43.25(g) provides that the determination can be made by:

  • Personal inspection of the child
  • Inspection of the photograph or motion picture that shows the child engaging in the sexual performance
  • Oral testimony by a witness to the sexual performance as to the age of the child based on the child’s appearance at the time
  • Expert medical testimony based on the appearance of the child engaging in the sexual performance
  • Any other method authorized by law or by the rules of evidence at common law.

If you are being charged with possession of child pornography at the state or federal level, it is important to have a child pornography defense attorney in Tarrant County who understands the law, the available defenses, how out-of-state subpoenas work, and how electronic evidence can be tracked or challenged in court. (817) 203-2220.

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Benson Varghese

Managing Partner at Varghese Summersett PLLC
Benson Varghese is the founder and Managing Partner of Varghese Summersett PLLC. He is a prolific writer and has authored hundreds of articles about criminal law in Texas and at the Federal level. His articles have been featured in the Wall Street Journal, Above the Law, and have been selected as Top Blogs by the State Bar of Texas. He was named the Young Lawyer of the Year in 2019 by the Tarrant County Bar Association. Benson led the firm to become one of the 500 fastest growing businesses in the United States by Inc 500 Magazine in 2018. In the same year, the firm was named the Best Law Firm in Fort Worth by the Fort Worth Star-Telegram. The lawyers at Varghese Summersett PLLC exclusively handle criminal defense matters.
Benson Varghese
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