ELEMENTS OF THE OFFENSE

1. The defendant mailed, transported, or shipped using any means or facility of interstate or foreign commerce, or in or affecting interstate or foreign commerce by any means, including by computer;
2. Material that is child pornography; and
3. The defendant knew both that the material depicted one or more minors and that the minors were engaged in sexually explicit conduct.[1]

TRANSPORTED

Child pornography can be “transported,” meaning moved from one place to another, electronically via the Internet.[2]

The Second Circuit found that by engaging in peer-to-peer file-sharing networks, placing files in a shared folder constitutes knowing and intentional transportation of those files, even if another party is the one who actively downloads those files to their computer from the shared folder.[3] An unpublished opinion from the Third Circuit reached the same conclusion.[4]

A conviction for transporting child pornography does not necessarily entail distribution or an intent to distribute.[5] However, the crimes are closely connected: “a person who has distributed child pornography has likely transported it, and a person who transports it is likely to eventually distribute it.”[6] Regardless, they are separate crimes.

The Ninth Circuit held that a defendant could not be convicted of transporting child pornography as a result of downloading such images to his computer from a foreign bulletin board. However, those who made the images available on the bulletin board may be charged for transporting the images.[7]

INTERSTATE COMMERCE

The Ninth Circuit maintains that the use of the Internet to transport child pornography, standing alone, is insufficient to establish that the material traveled across state lines, as required to satisfy the “interstate commerce” requirement.[8]

CHILD PORNOGRAPHY

See the Common Terms section here.

SEXUALLY EXPLICIT CONDUCT

See the Common Terms section here.

SENTENCING

Mandatory Minimums & Maximums

18 U.S.C. Section 2252(b)(1) and 2252(b)(1): “Whoever violates, or attempts or conspires to violate, [transportation of child pornography] shall be fined under this title and imprisoned….”

• Minimum: 5 years
• Maximum: 20 years

Prior conviction for a sex offense under [§ 2252/2252A, § 1591, Chapter 71, Chapter 109A, or Chapter 117, or under § 920 of Title 10, or under the laws of any State relating to aggravated sexual abuse, sexual abuse, abusive sexual contact involving a minor or ward, or sex trafficking of children, or the production, possession, receipt, mailing, sale, distribution, shipment, or transportation of child pornography]:

• Minimum: 15 years
• Maximum: 40 years

If any visual depiction involved in the offense involved a prepubescent minor or a minor under 12 years old:

• Maximum 20 years

If they also had a prior sex offense conviction:

• Minimum: 10 years
• Maximum: 20 years

PRIOR CONVICTIONS

In determining whether a prior offense under a state statute qualifies as a predicate offense for the purpose of sentence enhancement, circuits apply a categorical approach, considering the fact of conviction, the statutory definition of the prior offense, and determining whether the full range of conduct encompassed by the state statue is sufficient to enhance the sentence.^[9]

It is not necessary for a defendant’s prior sexual abuse conviction to involve a minor to qualify as a predicate offense to consider when determining the mandatory minimum sentence.^[10]

For child pornography statutes, a state crime triggers a sentence enhancement if it “relat[es] to” the relevant conduct (aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward).^[11] “Involving a minor” modifies only “abusive sexual conduct.”^[12] “Abusive sexual conduct involving a minor or ward” is generally agreed to mean “improper, perverted, or damaging behavior associated with libidinal gratification concerning a minor or ward.”^[13]

The Third, Seventh, Eighth, and Tenth Circuits ruled that the enhancement statute does not limit “child pornography” or “sexually abusive conduct” to their federal definitions, so absolute congruence of state and federal offenses is not required, and conduct related to state statutes can be related to federal offenses even if they are not actually criminalized by the federal statute.^[14] However, the Ninth Circuit disagreed, determining that if a state offense criminalizes more conduct than the federal offense, it is overbroad, and thus conviction under the state’s statue does not “relate to” the offense and trigger the enhanced mandatory minimum sentence.^[15]

Prior convictions that have qualified for sentence enhancements include sexual assault,^[16] gross sexual imposition,^[17] and adjudications for aggravated sexual assault and indecency with a child.^[18] Prior convictions determined not to qualify for sentence enhancements include a juvenile delinquency adjudication for a criminal sexual offense involving a minor^[19] and attempted pandering of obscenity involving a minor.^[20]

CITATIONS

[1] United States v. X-Citement Video, 513 U.S. 64, 77–78 (1994)

[2] United States v. Clarke, 979 F.3d 82, 93 (2d Cir. 2020)

[3] United States v. Clarke, 979 F.3d 82, 93 (2d Cir. 2020); United States v. Chiaradio, 684 F.3d 265, 282 (1st Cir. 2012)

[4] United States v. Schade, 318 F. App’x 91 (3d Cir. 2009)

[5] United States v. Tenuto, 593 F.3d 695, 697 (7th Cir. 2010)

[6] United States v. Tenuto, 593 F.3d 695, 697 (7th Cir. 2010)

[7] United States v. Mohrbacher, 182 F.3d 1041 (9th Cir. 1999)

[8] United States v. Wright, 625 F.3d 583 (9th Cir. 2010)

^[9] United States v. Sonnenberg, 556 F.3d 667 (8th Cir. 2009); Taylor v. United States, 495 U.S. 575, 110 S. Ct. 2143, 109 L. Ed. 2d 607 (1990); United States v. Medina-Valencia, 538 F.3d 831, 833 (8th Cir. 2008); United States v. Lockwood, 446 F.3d 825 (8th Cir. 2006)

^[10] Lockhart v. United States, 577 U.S. 347, 136 S. Ct. 958, 194 L. Ed. 2d 48 (2016)

^[11] Section 2252(b)(1); United States v. Mateen, 806 F.3d 857, 861 (6th Cir. 2015)

^[12] Lockhart v. United States, 577 U.S. 347, 136 S. Ct. 958, 194 L. Ed. 2d 48 (2016)

^[13] Webster’s Third New International Dictionary 8 (1981); Black’s Law Dictionary 13 (10th ed. 2009); United States v. Mateen, 806 F.3d 857, 861 (6th Cir. 2015); United States v. Barker, 723 F.3d 315, 317 (2d Cir. 2013); United States v. Sonnenberg, 556 F.3d 667, 670 (8th Cir. 2009)

^[14] United States v. Bennett, 823 F.3d 1316 (10th Cir. 2016); United States v. Portanova, 961 F.3d 252 (3d Cir. 2020); United States v. Kraemer, 933 F.3d 675 (7th Cir. 2019); United States v. Box, 960 F.3d 1025 (8th Cir. 2020)

^[15] United States v. Reinhart, 893 F.3d 606 (9th Cir. 2018)

^[16] United States v. Ary, 892 F.3d 787 (5th Cir. 2018); United States v. Sumner, 816 F.3d 1040 (8th Cir. 2016)

^[17] United States v. Mateen, 806 F.3d 857 (6th Cir. 2015)

^[18] United States v. Ary, 892 F.3d 787 (5th Cir. 2018)

^[19] United States v. Gauld, 865 F.3d 1030 (8th Cir. 2017)

^[20] United States v. Davis, 751 F.3d 769 (6th Cir. 2014)