Multiple Minors

GUIDELINES LANGUAGE

USSG § 2G2.1(d)(1):

“If the offense involved the exploitation of more than one minor, Chapter Three, Part D (Multiple Counts) shall be applied as if the exploitation of each minor had been contained in a separate count of conviction.”

The application notes specify that for the purposes of Chapter Three, Part D, each minor exploited is to be treated as a separate minor. Therefore, multiple counts involving the exploitation of different minors should not be grouped together under § 3D1.2 (Groups of Closely Related Counts). If the relevant conduct includes more than one minor being exploited (whether or not specifically cited in the count of conviction), each minor should be treated as if contained in a separate count of conviction.

EVIDENCE OF MULTIPLE MINORS

The Third Circuit found that evidence in the defendant’s emails that he encouraged one minor to engage in sexual conduct with another minor, subsequent photographs of the sexual contact between the two minors, and emails expressing the defendant’s intention to engage in sexual conduct with the second minor, was sufficient for the conclusion that the offense involved a second minor.[1]

Similarly, the Sixth Circuit found that there was sufficient evidence for the exploitation of multiple minors when the defendant took photographs of twin girls, and the photographs suggested that the defendant was “actively photographing both girls” even though they were virtually indistinguishable from each other in photographs.[2]

[1] United States v. Ward, 626 F.3d 179, 183 (3d Cir. 2010)

[2] United States v. Brown, 579 F.3d 672, 678 (6th Cir. 2009)

RELEVANT CONDUCT

The Sixth Circuit found that the defendant’s alleged sexual exploitation of a second minor more than one year after the date of his charged sexual exploitation of a minor did not occur “during the commission of” his sexual exploitation of the first minor, and thus did not qualify as “relevant conduct” for purposes of a multiple-victim enhancement. There was no evidence that the second minor was also photographed on the date charged, or that the two minors were ever photographed.[3]

When a defendant was charged with the production of child pornography with respect to only one minor, the exploitation of two other minors during the commission of the offense of conviction was deemed relevant conduct.[4]

[3] United States v. Schock, 862 F.3d 563, 567 (6th Cir. 2017)

[4] United States v. Ahders, 622 F.3d 115 (2d Cir. 2010)

DOUBLE COUNTING

Imposition of a five-level enhancement for engaging in a pattern of activity involving prohibited sexual conduct and a three-level enhancement for exploiting more than one minor (§ 2G2.1(d)(1)) was not impermissible double counting where separate adjustments for the number of minors exploited and for the fact that those minors were exploited on multiple occasions were not premised on the same conduct.[5]

[5] United States v. Peck, 496 F.3d 885 (8th Cir. 2007); United States v. Fleischer, 971 F.3d 559 (6th Cir. 2020); United States v. Fadl, 498 F.3d 862, 867 (8th Cir. 2007)