SENTENCING GUIDELINES

OVERVIEW

Federal district courts use the U.S. Sentencing Guidelines to calculate the total offense level for each defendant convicted of a crime in federal court. The total offense level corresponds with an advisory sentencing range in months (e.g., level 32 corresponds with a sentencing range of 121 to 151 months in custody). After calculating a defendant’s total offense level, a district court can give a sentence below or above the Guidelines range as long as the deviation from the Guidelines is properly explained and doesn’t run afoul of any mandatory minimums or maximums.

This calculation begins with the base offense level, which is determined by the type of offense. In sex offense cases, there are a host of adjustments, or enhancements, that may then apply. These enhancements can dramatically increase a defendant’s total offense level. This section of Johnson/Citronberg’s Handbook takes a closer look at the applicable enhancements in federal internet sex offense cases. This section also examines how a defendant’s criminal history in sex offense cases can increase the total offense level.

BASE OFFENSE LEVELS

The base offense levels for common federal internet sex offenses are set forth below:

Level 18

(27 to 33 months): Possession of Child Pornography

Level 22

(41 to 51 months): Receipt or Distribution of Child Pornography

Level 32

(121 to 151 months): Production of Child Pornography, Advertisement

ENHANCEMENTS – CHAPTER 2

There are numerous potential enhancements that may apply in a federal internet sex offense case. These enhancements are found in Chapter 2 of the U.S. Sentencing Guidelines and are based on the nature of the charged offense.

In possession, receipt, and/or distribution cases, the following adjustments may apply:

• USSG § 2G2.2(b)(1) – No Distribution (-2 levels)
• USSG § 2G2.2(b)(2) – Child Less than 12 (+2 levels)
• USSG § 2G2.2(b)(3) – Pecuniary Gain/Distribution to Minor (+2 to +7 levels)
• USSG § 2G2.2(b)(4) – Sadistic Conduct/Abuse of Infant or Toddler (+4 levels)
• USSG § 2G2.2(b)(5) – Pattern of Activity (+5 levels)
• USSG § 2G2.2(b)(6) – Use of Computer (+2 levels)
• USSG § 2G2.2(b)(7) – Number of Images (+2 to +5 levels)
• USSG § 2G2.2(c)(1) – Cross References

In production and advertisement cases, the following adjustments may apply:

• USSG § 2G2.1(b)(1) – Age of Minor (+2 to +4 levels)
• USSG § 2G2.1(b)(2) – Commission of Sex Act (+2 to +4 levels)
• USSG § 2G2.1(b)(3) – Distribution (+2 levels)
• USSG § 2G2.1(b)(4) – Sadistic Conduct / Portrays Abuse of Infant or Toddler (+4 levels)
• USSG § 2G2.1(b)(5) – Minor in Custody of Defendant (+2 levels)
• USSG § 2G2.1(b)(6) – Use of Computer to Solicit / Misrepresentations (+2 levels)
• USSG § 2G2.1(c)(1) – Cross References
• USSG § 2G2.1(d) – Multiple Minors

CRIMINAL HISTORY – CHAPTER 4

In addition to Chapter 2 enhancements, a defendant’s criminal history may also increase the total offense level under Chapter 4 of the U.S. Sentencing Guidelines. This section of the Guidelines is known as the “Repeat and Dangerous Sex Offender Against Minor” and there are two sub-sections in particular that counsel should be familiar with:

• USSG § 4B1.5(a) – Repeat and Dangerous Sex Offender
• USSG § 4B1.5(b) – Pattern of Prohibited Sexual Conduct