Federal child pornography defense lawyers are discovering that more and more courts are declining to follow the Sentencing Guidelines in cases involving receipt and possession of child pornography. The U.S. Sentencing Guidelines are designed to advise federal courts on appropriate sentences based on the severity of the crimes committed and a defendant's criminal history. The Guidelines then suggest an appropriate range of prison time so that judges still have discretion to look at the particular facts and circumstances of a given case while avoiding the widely varying sentences that were common prior to the introduction of the Guidelines. Although these Guidelines are generally followed with little fanfare, federal courts are continuing to depart from the recommended Guidelines range in child pornography cases.
Persons convicted of trafficking in child pornography can face extremely long prison terms. It is not unusual for such individuals to face decades of prison time, even if they have no prior criminal history and are not charged with any direct sexual contact with a minor. This is because the Sentencing Guidelines provide for a number of increases in "levels" on top of the base offense level. Every added level indicates a more serious offense and therefore results in a longer sentence.
The problem for some courts is that the child pornography Guidelines create increased penalties that apply in the majority - if not virtually all - cases. For example, if a computer is used in "the possession, transmission, receipt, or distribution of [child pornography], or for accessing with intent to view the material" a two-level increase results. U.S.S.G. § 2G2.2. There are also level increases if the pornographic material involves a prepubescent minor or a child under 12, distribution in the expectation of receiving anything of value (including other child pornography), and increases based on the number of images.
As the Second Circuit Court of Appeals noted its recent decision United States v. Dorvee, 616 F3d 174, 186, n.9 (2d Cir. 2010), over 97 percent of cases today involve a computer, nearly 95 percent involve a prepubescent minor, and 96 percent of cases involve at least a two-level enhancement based on the number of images the individual possessed. The bizarre result of these numerous enhancements is that, in this case, if Dorvee had actually sought out and had sex with a 12-year-old child, the applicable Guideline range would be significantly lower than the Guideline range that applied in Dorvee's case, where he never engaged in any sexual contact with a minor. Id. at 187. Moreover, the Court noted that the statutory maximum sentence was actually shorter (240 months) than the low end of the Guideline range (262 months). Id. at 180-81. The Court of Appeals found this to be so unreasonable that it amounted to a substantive error and vacated Dorvee's sentence. Id. at 188.
The Sentence Guidelines are not mandatory; they are intended to be just that: guidelines. They are, however, very influential, and courts do not frequently depart from them without serious consideration and explanation. But Dorvee is one of an increasing number of child pornography cases where courts have determined that the goals of the Sentencing Guidelines are not being advanced, leading the courts to disregard them.