GUIDELINES LANGUAGE

USSG § 2G2.2(b)(2): If the material involved a prepubescent minor or a minor who had not attained the age of 12 years, increase by 2 levels.

History

• Nov. 1, 1987: § 2G2.2(b)(1) added to guidelines: “if the material involved a minor under the age of twelve years, increase by 2 levels”
• June 15, 1988: added “prepubescent minor”
• Nov. 1, 2004: Changed to § 2G2.2(b)(2).[1]

[1] “The History of the Child Pornography Guidelines,” United States Sentencing Commission (2009)

MATERIAL

Computer files containing child pornography constitute “material” for sentence enhancement purposes.[2]

The presence of only one image of a prepubescent minor or a minor under 12 is sufficient support for the enhancement.[3]

[2] United States v. Hall, 142 F.3d 988 (7th Cir. 1998)

[3] United States v. Fox, 248 F.3d 394, 411 (5th Cir. 2001), cert. granted, judgment vacated, 535 U.S. 1014, 122 S. Ct. 1602, 152 L. Ed. 2d 617 (2002), and disapproved of by Ashcroft v. Free Speech Coal., 535 U.S. 234, 122 S. Ct. 1389, 152 L. Ed. 2d 403 (2002)

PREPUBESCENT MINOR

“Prepubescent” was not void for vagueness in a case where the presentence report recommended the enhancement on the basis of a postal inspector’s report opining that a child in a film was under 12. There was also no evidence that the child had reached children or that would have led someone like the defendant to believe that they had reached puberty. [4]

[4] United States v. Marquardt, 949 F.2d 283, 286 (9th Cir. 1991)

MINOR LESS THAN 12 YEARS

Where the presentence investigation report indicates a pornographic image of a minor under 12 and no evidence is produced disputing the content of the image, the two-level sentencing increase is warranted.[5]

Independent proof that the material involved actual children under 12 is not required for the imposition of the two-level enhancement when the material itself supports the determination that images depicted actual children plainly under 12.[6]

[5] United States v. Cover, 800 F.3d 275, 278 (6th Cir. 2015); United States v. Geerken, 506 F.3d 461 (6th Cir. 2007)

[6] United States v. Deaton, 328 F.3d 454, 455 (8th Cir. 2003)

KNOWLEDGE

There is no clear agreement on whether the two-level enhancement requires knowledge of the minors’ ages or prepubescent status.

The Eleventh Circuit held that the enhancement could not be applied to a defendant who did not intend to receive material involving prepubescent children or children under 12, but received it after the government shipped it to him to create a predicate for enhanced punishment.[7]

The Fifth Circuit determined that a reckless disregard for the ages of the subjects satisfies the defendant’s knowledge of the age of those depicted with regard to the two-level enhancement.[8]

[7] United States v. Saylor, 959 F.2d 198 (11th Cir. 1992)

[8] United States v. Fox, 248 F.3d 394, 411 (5th Cir. 2001), cert. granted, judgment vacated, 535 U.S. 1014, 122 S. Ct. 1602, 152 L. Ed. 2d 617 (2002), and disapproved of by Ashcroft v. Free Speech Coal., 535 U.S. 234, 122 S. Ct. 1389, 152 L. Ed. 2d 403 (2002); United States v. Kimbrough, 69 F.3d 723, 734 (5th Cir. 1995)

DOUBLE PUNISHMENT

The application of two sentence enhancements for materials involving minors under 12 and for materials portraying sadistic or masochistic conduct did not impermissibly result in double punishment, as they are two distinct enhancements involving two distinct findings and two distinct harms.[9]

[9] United States v. McLaughlin, 760 F.3d 699 (7th Cir. 2014); United States v. Kiefer, 760 F.3d 926 (9th Cir. 2014); United States v. Myers, 355 F.3d 1040 (7th Cir. 2004); United States v. Lyckman, 235 F.3d 234 (5th Cir. 2000)