EDVA Judge Tosses 75:1 Sentencing Rule in Federal Child Pornography Case
In a recent Eastern District of Virginia federal child pornography case, a judge struck down a sentencing enhancement which counts each video as 75 images. The decision is of great importance as this specific enhancement has long been used to greatly increase the sentences of defendants convicted of federal child pornography offenses.
The case – United States v. Roberts — offers a compelling new legal argument in the wake of a Supreme Court opinion (Kisor v. Wilkie) which found that district courts should not defer to an agency’s interpretation of its rules where the rule is unambiguous. Even when the rule is ambiguous, the Supreme Court reasoned that the district court need not defer to the agency’s interpretation where the agency’s interpretation is unreasonable, or the district court is in a better position to interpret and apply the rule.
The Core Controversy: Quantifying “Images” in Sentencing
Federal sentencing in child pornography cases often involves U.S.S.G. § 2G2.2(b)(7), which mandates increased penalties based on the number of “images” of child pornography possessed. The enhancement climbs steeply: 2 extra levels for 10–149 images, 5 extra levels for 600 or more.
Here’s where it gets controversial: the U.S. Sentencing Commission’s Commentary says each video counts as 75 images—no matter how long or short the video is. This “75:1 Rule” has led to decades of steep enhancements that can add years to a sentence. In fact, possessing as few as six videos could result in the maximum five-point enhancement, significantly escalating the recommended period of incarceration. This method of counting has been a point of contention within the legal community, often criticized for leading to disproportionately harsh outcomes without accounting for the actual content or length of the videos.
The Roberts Decision: Challenging the Status Quo
The Defendant in Roberts challenged the application of this 75:1 Rule. Roberts had 13 pictures and 127 videos. Under the 75:1 rule, that meant 9,538 “images”—which triggered the highest possible enhancement. The Court sided with Roberts, making a critical determination that the term “image” within the sentencing guideline itself is not genuinely ambiguous. This finding is crucial because it means the Court was not obligated to defer to the Sentencing Commission’s Commentary, including the controversial 75:1 Rule.
The Court meticulously analyzed relevant statutory language (18 U.S.C. §§ 2252A and 2256), common dictionary definitions, and the legislative history of the PROTECT Act. Based on this comprehensive review, the Court concluded that, within the context of sentencing enhancements, one video unambiguously constitutes one image, mirroring the treatment of a single picture or photograph.
As a result, the Court struck the 5-point enhancement and applied a 2-point enhancement. That dropped Roberts’ guideline range from 97–120 months to 70–87 months.
Why This Matters for Clients and Lawyers
This case highlights how creative lawyering can be used to take advantage of the judiciary finally taking notice that long-standing sentencing rules are often arbitrary and overly harsh. Following the Supreme Court’s decision in Kisor, courts are moving away from blind deference to guideline commentary. That matters not just in child pornography cases, but in any case where enhancements are driven by interpretive commentary rather than the actual guideline text.
This decision also implicitly questions the fairness of enhancements that ignore the content, duration, or severity of material in favor of a mechanical tally. For clients, that means there’s hope—and there’s room to fight.
If you or someone you know has been accused of a federal child pornography offense, give our law firm a call or send us a web inquiry. We have years of experience successfully defending individuals charged in the Eastern District of Virginia and across the country.
