Reduction For No Distribution

Guidelines Language

USSG § 2G2.2(b)(1): If (A) subsection (a)(2) applies; (B) the defendant’s conduct was limited to the receipt or solicitation of material involving the sexual exploitation of a minor; and (C) the defendant did not intend to traffic in, or distribute, such material, decrease by 2 levels.

HISTORY

Nov. 1, 2004: § 2G2.2(b)(1) added to the guidelines.[1]

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

(A): SUBSECTION (a)(2)

Subsection (a)(2) applies if the defendant is not convicted of 18 USC § 1466A(b), § 2252(a)(4), § 2252A(a)(5), or § 2252A(a)(7). If this is the case, the base offense level is 22.[2]

[2] U.S.S.G. § 2G2.2(a)(2)

(B): DEFENDANT’S CONDUCT LIMITED

Circuits have determined that (b)(1)(B) and (b)(1)(C) are conjunctive, meaning that the absence of either premise defeats a request for reduction.[3]

Circuits have found that conduct was not limited to receipt or solicitation of child pornography in instances where defendants produced a video of a naked minor [4] or used a peer-to-peer file-sharing network on which it was possible to share child pornography.[5]

The Fifth Circuit ruled that when considering a two-level decrease, District Courts may consider conduct in addition to that underlying the offense of conviction as long as it qualifies as relevant conduct as defined in the Sentencing Guidelines, regardless of whether or not the conduct involves material involving the sexual exploitation of a minor.[6] However, the Third Circuit clarified that the court should not consider conduct that is not criminally punishable.[7]

[3] United States v. Abbring, 788 F.3d 565, 568 (6th Cir. 2015); United States v. Fore, 507 F.3d 412, 415 (6th Cir. 2007); United States v. Berringer, 393 F. App’x 257, 263 (6th Cir. 2010); United States v. Ray, 704 F.3d 1307, 1313 (10th Cir. 2013)

[4] United States v. Hodge, 805 F.3d 675 (6th Cir. 2015)

[5] United States v. Meek, 32 F.4th 576 (6th Cir. 2022); United States v. Miltier, 993 F.3d 267 (4th Cir. 2021); United States v. Bleau, 930 F.3d 35 (2d Cir. 2019); United States v. Cubero, 754 F.3d 888 (11th Cir. 2014); Haney v. United States, 962 F.3d 370 (8th Cir. 2020)

[6] United States v. Goluba, 672 F.3d 304 (5th Cir. 2012); United States v. Fowler, 216 F.3d 459 (5th Cir. 2000)

[7] United States v. Dura, 701 F. App’x 125, 128 (3d Cir. 2017) (Unpublished)

(C): DEFENDANT DID NOT DISTRIBUTE

Circuits have found that a defendant who distributed child pornography, even unintentionally, does not qualify for the two-level reduction.[8]

[8] United States v. Shelabarger, 770 F.3d 714 (8th Cir. 2014); United States v. Burgess, 576 F.3d 1078 (10th Cir. 2009); United States v. Ray, 704 F.3d 1307, 1313 (10th Cir. 2013); United States v. Baker, 742 F.3d 618, 624 (5th Cir. 2014)