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Handbook Cover for Treatise on Internet Sex Crimes

Chapter 3: Sentencing Guidelines


USSG § 2G2.2(b)(7)


Number of Images

GUIDELINES LANGUAGE

USSG § 2G2.2(b)(7): “If the offense involved – 

  1. At least 10 images, but fewer than 150, increase by 2 levels;
  2. At least 150 images, but fewer than 300, increase by 3 levels;
  3. At least 300 images, but fewer than 600, increase by 4 levels; and
  4. 600 or more images, increase by 5 levels.”

“‘Images’ means any depiction, as defined in 18 U.S.C. § 2256(5), that constitutes child pornography, as defined in 18 U.S.C. § 2256(8).”

“For purposes of determining the number of images under subsection (b)(7):

(i) Each photograph, picture, computer or computer-generated image, or any similar visual depiction shall be considered to be one image. If the number of images substantially underrepresents the number of minors depicted, an upward departure may be warranted.

(ii) Each video, video-clip, movie, or similar visual depiction shall be considered to have 75 images. If the length of the visual depiction is substantially more than 5 minutes, an upward departure may be warranted.”

HISTORY

  • April 30, 2003: Specific offense characteristic for the number of images added as § 2G2.2(b)(6) (with identical language as current guidelines)

  • Nov. 1, 2004: Changed to § 2G2.2(b)(7).

DUPLICATE IMAGES

Duplicate digital and duplicate hard copy images are counted separately for purposes of calculating an enhancement under § 2G2.2(b)(7).[2] When a defendant sends the same image via email multiple times, each email counts as a reproduction of the image and therefore counts toward the enhancement calculation.[3] Thumbnails that are previews of images are not considered duplicates and should not be counted for purposes of calculating an enhancement. [4]


[2] United States v. McNerney, 636 F.3d 772, 780 (6th Cir. 2011); United States v. Borho, 485 F.3d 904 (6th Cir. 2007); United States v. Acosta, 619 F.3d 956, 962 (8th Cir. 2010)

[3] United States v. Price, 711 F.3d 455, 460 (4th Cir. 2013)

[4] United States v. McNerney, 636 F.3d 772 (6th Cir. 2011)

EVIDENCE

Factual matters such as whether or not every image contains child pornography do not need to be determined by a jury, and testimony regarding the images’ content is sufficient evidence to support the application of the enhancement.[5]

The precise number of images containing child pornography does not need to be determined – an undisputed estimate is sufficient for the application of the enhancement. [6]


[5] United States v. Cordy, 560 F.3d 808, 817 (8th Cir. 2009)

[6] United States v. Lasaga, 328 F.3d 61 (2d Cir. 2003)

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