GUIDELINES LANGUAGE

USSG § 2G2.2(b)(6):

“If the offense involved the use of a computer or an interactive computer service for the possession, transmission, receipt, or distribution of the material, or for accessing with intent to view the material, increase by 2 levels.

“Computer” has the meaning given in 18 U.S.C. § 1030(e)(1): “an electronic, magnetic, optical, electrochemical, or other high speed data processing device performing logical, arithmetic, or storage functions, and includes any data storage facility or communications facility directly related to or operating in conjunction with such device, but such term does not include an automated typewriter or typesetter, a portable hand held calculator, or other similar device.”[1]

“Interactive computer service” as the meaning given in section 230(e)(2) of the Communications Act of 1934: “any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet and such systems operated or services offered by libraries or educational institutions.”

History

• Nov. 1, 1996: § 2G2.2(b)(5) added to guidelines: “If a computer was used for the transmission of the material or a notice or advertisement of the material, increase by 2 levels”
• Nov. 1, 2004: Changed to § 2G2.2(b)(6)
• May 1, 2009: Added “or for accessing with intent to view the material.”[2]

[1] United States v. Green, 954 F.3d 1119 (8th Cir. 2020) (The definition of “computer” is not unconstitutionally vague.)

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

APPLICATION

The Department of Justice recommended eliminating the enhancement for computer use in a letter to the Sentencing Commission in 2013.[3] However, this enhancement has yet to be eliminated, and district courts continue to have broad discretion on whether to apply or vary from the enhancement.[4]

In a charge for trafficking child pornography, the Third and Eighth Circuits found that the two-level computer use enhancement applies regardless of whether the defendant used a computer to transmit pornography (or advertisement) to someone else, or if someone else used a computer to transmit it to the defendant.[5]

The Third Circuit reasoned that the language of the guideline is targeted toward “the material” and not “the offense,” so the enhancement does not hinge on whether the defendant used a computer to commit “the offense.” What matters is whether the “material” had at some point been transmitted using a computer. The Second Circuit followed the Third Circuit’s reasoning and found that the enhancement was warranted for a defendant convicted of physically carrying a CD containing child pornography because computer use was necessary to download the images from their computer onto the CD.[6]

[3] Gannon, Anne. “Department of Justice Letter to the USSC on the Child Pornography Report.” Federal Sentencing Reporter, vol. 25, no. 5, 2013, pp. 345–48.

[4] United States v. Morrison, 771 F.3d 687, 691 (10th Cir. 2014)

[5] United States v. Harrison, 357 F.3d 314 (3d Cir. 2004), cert. granted, judgment vacated, 543 U.S. 1102, 125 S. Ct. 1027, 160 L. Ed. 2d 1012 (2005), and aff’d in part, 128 F. App’x 210 (3d Cir. 2005); United States v. Stulock, 308 F.3d 922 (8th Cir. 2002)

[6] United States v. Weisser, 417 F.3d 336 (2d Cir. 2005)

DOUBLE COUNTING

Applying the two-level computer use enhancement for charges of transportation or possession of child pornography (via means of a computer) is not improper double counting because computer use is not required for the transportation of child pornography.[7]

[7] United States v. Little, 864 F.3d 1283 (11th Cir. 2017); United States v. Roetcisoender, 792 F.3d 547 (5th Cir. 2015)