USSG § 2G2.1(c) (Production Cases)

If a defendant is convicted of production offenses and if the victim was killed in a way that constitutes murder under 18 U.S.C. § 1111 within United States territorial or maritime jurisdiction, the defendant is cross-referenced to § 2A1.1 (First Degree Murder) if the resulting sentencing range is greater.[1]

[1] U.S.S.G. § 2G2.1(c)(1)

USSG § 2G2.2 (Non-Production Cases)

Defendants convicted of non-production offenses are cross-referenced to § 2G2.1 if their conduct involved production and if the sentencing range under § 2G2.1 exceeds the range resulting from § 2G2.2.[2]

[2] U.S.S.G. § 2G2.2(c)(1)

APPLICATION

In a defendant’s sentencing for a non-production offense, the sentencing guidelines cross-reference for the production of child pornography applies if one of the defendant’s purposes was to create a visual depiction of sexually explicit conduct, regardless of whether this was the primary motivation. The Third Circuit found that consideration of the defendant’s purpose in producing sexually explicit material is necessary.[3] They stated that “it is critically important to be certain that the defendant’s purpose was, in fact, to create pornographic pictures.”[4]

The Seventh Circuit ruled that applying the sentencing guidelines cross-reference for the production of child pornography to a defendant convicted of attempted enticement of a minor to engage in sexual conduct and interstate travel for the purpose of engaging in sexual activity was appropriate. The defendant asked for photographs of sexual activity between minors, wanted to photograph them at a planned meeting during which he intended to have sexual conduct with them, and was arrested carrying three cameras after traveling to meet them.[5]

A defendant’s conduct can be “one step removed from the actual production and still fall within the ambit of the cross-reference.”[6] For example, the Third Circuit found that a defendant’s encouragement of the molestation of the victim qualified as relevant uncharged conduct, and the cross-reference was warranted.[7] Similarly, the D.C. Circuit applied the cross-reference to a defendant who encouraged the production of a sexually explicit live webcam video of a minor.[8]

The Eighth Circuit applied the cross-reference enhancement based on relevant conduct from charges dismissed pursuant to a plea agreement.[9] Other Circuits have also upheld the cross-reference for uncharged and dismissed offenses.[10] The Tenth Circuit found that a codefendant’s production of child pornography is relevant conduct and triggers the cross-reference.[11]

The exploitation of minors qualifies as relevant conduct even if the production occurred outside of the United States.[12]

[3] United States v. Veazey, 491 F.3d 700 (7th Cir. 2007); United States v. Isip, No. 22-3210, 2023 WL 5696109, at *2 (3d Cir. Sept. 5, 2023); United States v. Cox, 744 F.3d 305 (4th Cir. 2014); United States v. Mai, 291 F. App’x 910 (10th Cir. 2008) (Unpublished); United States v. Hughes, 282 F.3d 1228 (9th Cir. 2002)

[4] United States v. Crandon, 173 F.3d 122, 129 (3d Cir. 1999)

[5] United States v. Veazey, 491 F.3d 700 (7th Cir. 2007)

[6] United States v. Garcia, 411 F.3d 1173, 1179 (10th Cir. 2005)

[7] United States v. Thielemann, 575 F.3d 265, 270 (3d Cir. 2009)

[8] United States v. Zagorski, 807 F.3d 291 (D.C. Cir. 2015)

[9] United States v. Jones, 994 F.2d 456, 459 (8th Cir. 1993)

[10] United States v. Miller, 166 F.3d 1153 (11th Cir. 1999); United States v. Speelman, 431 F.3d 1226 (9th Cir. 2005)

[11] United States v. Tagore, 158 F.3d 1124 (10th Cir. 1998)

[12] United States v. Dawn, 129 F.3d 878, 881 (7th Cir. 1997); United States v. Wilkinson, 169 F.3d 1236 (10th Cir. 1999); United States v. Zayas, 758 F.3d 986 (8th Cir. 2014)