United States District Court, E.D. Tennessee, Greeneville
MEMORANDUM AND ORDER
JORDAN UNITED STATES DISTRICT JUDGE.
defendant pled guilty to distributing child pornography in
violation of 18 U.S.C. § 2252A(a)(2) and will be
sentenced on August 15, 2017. The United States Probation
Office has prepared and disclosed a Presentence Investigation
Report (“PSR”) [doc. 22] to which the defendant
has raised several objections [doc. 25]. The United States
has filed a responsive brief [doc. 26]. For the reasons that
follow, the defendant's objections will be sustained in
part and otherwise overruled.
in this case sets a base offense level of 22
pursuant to United States Sentencing Guideline
(“U.S.S.G.”) § 2G2.2(a)(2). The
defendant's adjusted offense level is 37 after
application of five special offense characteristics found in
U.S.S.G. § 2G2.2(b). With a criminal history category of
one and a total offense level of 34, the advisory
guideline range is 151 to 188 months.
defendant challenges each of the 2G2.2(b) increases as overly
harsh, cumulative, or unsupported by empirical data. The
court is not required to accept the defendant's
arguments. See, e.g., United States v. Bistline, 665
F.3d 758 (6th Cir. 2012). However, the court is of
course free to reject any provision of § 2G2.2 based on
sufficiently-articulated policy grounds. See Id. at
court will first address the defendant's criticism of
advisory guideline subsections 2G2.2(b)(2) and (b)(4). Those
enhancements relate to the nature of the images involved in
the offense of conviction. Citing statistical evidence, the
defendant argues that images of this character are found in
most federal child pornography prosecutions, and therefore
these offense level increases are unwarranted because such
images are so common. The court disagrees.
that the defendant's statistical evidence has some
validity, the court has no proof before it that those
statistics show anything more than a decision by United
States Attorney's Offices to devote their limited
resources to the prosecution of offenses involving these most
egregious of images. In any event, the court considers the
types of images addressed by advisory guideline subsections
(b)(2) and (b)(4) to be truly the worst of the worst in these
cases, and as such they merit harsher sentences.
defendant also suggests that subsections (b)(2) and (b)(4)
should not be applied absent evidence that he specifically
sought out those types of images (as opposed to inadvertently
coming across them in broader internet searches). This
argument is wholly without merit. Subsection (b)(2) and
(b)(4) images were found on, and thus had been downloaded
onto, the defendant's own smartphone. The defendant's
2G2.2(b)(2) and (b)(4) objections will accordingly be
the defendant objects to the two-level increase, pursuant to
U.S.S.G. § 2G2.2(b)(3)(F), for knowingly engaging in
distribution of child pornography. The defendant argues that
his distribution was merely “passive” and that
application of subsection (b)(3)(F) amounts to impermissible
double-counting because the act of distribution is already
taken into account in his base offense level. The court
disagrees on both points.
base offense level of 22 is set by guideline 2G2.2(a)(2).
That subsection applies to violations of 18 U.S.C. §
2252A(a)(2), the defendant's statute of conviction.
Section 2252A(a)(2) can be violated by either distributing or
receiving child pornography. See 18 U.S.C. §
2252A(a)(2). Therefore, a base offense level of 22 does not
necessarily take into account the act of distribution.
“This structure cannot be understood to address the
harm associated with the distribution of child pornography in
a base offense level of 22 that applies equally to a variety
of offenses, some involving distribution and others not.
Rather, § 2G2.2 is structured so that the range of harms
associated with distribution can be addressed through various
enhancements.” United States v. Walters, 775
F.3d 778, 784 (6th Cir. 2015) (citation omitted).
Further, the two-level (b)(3)(F) enhancement covers
“passive” distribution such as the use of
peer-to-peer software. Id. at 784-85. The court
finds it appropriate to increase the present defendant's
offense level by way of § 2G2.2(b)(3)(F) because he
distributed child pornography, and his objection on that
issue will be overruled.
to the defendant's arguments relating to guideline
2G2.2(b)(6) and (b)(7)(D), the court agrees that full
application of these two provisions results in a slightly
overstated sentencing range in this case. Section (b)(6)
applies “[i]f the offense involved the use of a
computer . . . .” One justification for that
enhancement is that internet technology dramatically
increases the ease with which child pornography can be spread
throughout the world. The high number of images involved in
the present case, all of which presumably were obtained via
the internet, clearly illustrates that point. At the same
time, however, the court cannot recall a child pornography
prosecution in the last decade (or beyond) which did not
involve, primarily or in full, a computer.
the defendant's objection to the (b)(7) “number of
images” enhancement, the quantity of images in this
case is among the highest this court has seen. Pursuant to
advisory guideline § 2G2.2(b)(7)(D), the PSR increases
the defendant's offense level by five because the offense
involved more than 600 images. In this case, 620 still images
and 190 videos of child pornography were identified on the
defendant's smartphone. [PSR ¶ 12]. Those totals
equate to 14, 870 “images” under the guidelines -
almost twenty-five times the highest (b)(7) threshold.
See U.S.S.G. § 2G2.2 cmt. n.6. The court feels
that this substantial number of images merits imposition of
the five-level quantity enhancement.
to also increase the present defendant's offense level by
two under guideline 2G2.2(b)(6) for use of a computer is
excessive. His offense level is already increased by seven
for the number of images obtained by computer and for
distributing by computer. That is enough. Therefore, solely
on the facts of this particular case, the court will not
apply guideline 2G2.2(b)(6). With that adjustment, the
defendant's total offense level becomes 32, his criminal
history category remains one, and his advisory guideline
range is reduced to 121 to 151 months.
defendant's objections to his PSR are, as explained
herein, SUSTAINED IN PART, as to U.S.S.G.
§ 2G2.2(b)(6) only, and otherwise
OVERRULED. Sentencing remains set for
Tuesday, August 15, 2017, at 10:15 a.m. in Greeneville.