Age Of Victim

GUIDELINES LANGUAGE

If the offense involved a minor who had (A) not attained the age of twelve years, increase by 4 levels; or (B) attained the age of twelve years but not attained the age of sixteen years, increase by 2 levels.

FICTITIOUS VICTIMS

The Fourth Circuit found that because neither subparagraph (A) nor (B) in the definition of “minor” for § 2G2.1 encompasses a situation in which a private citizen poses as a fictitious minor, the enhancement is not warranted.[1]

The Eleventh Circuit found that a two-level enhancement where an undercover officer poses as someone not yet 16 years old is not an impermissible sentencing manipulation because the government’s conduct in choosing an age for the “victim” was not any more manipulative than in any other sting operation, and because the defendant believed he was interacting with a minor under 16, the enhancement is warranted.[2]

[1] United States v. Haas, 986 F.3d 467, 480 (4th Cir.), cert. denied, 142 S. Ct. 292, 211 L. Ed. 2d 136 (2021)

[2] United States v. Bohannon, 476 F.3d 1246, 1252 (11th Cir. 2007)

VERY YOUNG VICTIMS

USSG § 2G2.2(b)(1) does not include an incremental enhancement for very young victims, but the USSG §3A1.1 “vulnerable victim” enhancement may apply. Most courts do not apply this enhancement in production cases.[3] However, most circuits that have considered the issue ruled that it is not improper to apply this enhancement in cases where “victims’ vulnerability [is] not fully ‘incorporated’ in the victim-under-12 adjustment.” [4] The Fourth Circuit split, ruling that the vulnerable victim adjustment is not applicable when based solely on age because the Guidelines specifically drew a line at 12 years of age, and not for any younger ages.[5]

[3] United States Sentencing Commission, 2012 Report to the Congress: Federal Child Pornography Offenses, Chapter 9: “Child Pornography Production Cases”

[4] United States v. Wright, 373 F.3d 935, 942 (9th Cir. 2004); United States v. Jenkins, 712 F.3d 209 (5th Cir. 2013)

[5] United States v. Dowell, 771 F.3d 162, 175 (4th Cir. 2014)

EVIDENCE

District courts can rely on factual allegations in a presentence report even if the defendant objected to the report’s recommendation based on them but not the facts themselves.[6] Where there is no objection to the factual allegation of a victim’s age, and the court did not clearly err in determining their age, it is appropriate to apply the enhancement.[7]

The First Circuit found that this enhancement applies when victims were 16 years of age or older at the time the pornographic material was produced if the defendant began grooming them before the age of 16.[8]

[6] United States v. Bledsoe, 445 F.3d 1069 (8th Cir. 2006)

[7] United States v. Zayas, 758 F.3d 986, 990 (8th Cir. 2014)

[8] United States v. Gonyer, 761 F.3d 157, 168 (1st Cir. 2014)