Wednesday, February 01, 2012

Two five-level enhancements approved

US v. Strieper:   At Strieper’s sentencing for attempted enticement, receipt of child porn, and possession of child porn, the district court applied two different five-level enhancements under U.S.S.G. §2G2.2(b)(5), the first for engaging in a pattern of sexual abuse or exploitation of a minor, and the second for distribution of child pornography for receipt of a thing of value. On appeal, the Fourth Circuit considered the propriety of these enhancements, and affirmed the district court’s judgment.

The Sentencing Guidelines permit a five-level enhancement for a "pattern of activity involving the sexual abuse or exploitation of a minor." A "pattern of activity" consists of two or more separate instances of such conduct. A "minor" may include unidentified children, as application of the enhancement indicates a focus on the danger a defendant would pose if given the opportunity to carry out his plans, rather than on the whether a defendant actually has exposed a child to direct harm. Here, one of the bases for the enhancement included Strieper’s communication with "Stu," a confidential source from the U.S. Department of Homeland Security. Strieper argued unsuccessfully that his attempt to entice Stu does not qualify for the enhancement because the definition of "minor" required a specific victim, a requirement that the Fourth Circuit rejected.

At his sentencing, Strieper did not object to the second five-level enhancement, for distribution of child porn for the receipt of a thing of value, so the Fourth Circuit reviewed this enhancement for plain error only. The district court applied this enhancement because Strieper used a peer-to-peer file-sharing network; prior to this decision, the Fourth Circuit had previously upheld a two-level enhancement for sharing child pornography files via such a network, but it had not yet addressed the question of whether a five-level enhancement for sharing files this way was appropriate.

The Fourth Circuit followed the reasoning of the Eighth Circuit, which held that a five-level enhancement for file sharing on a peer-to-peer network, e.g. Limewire, is appropriate because these networks exist for the purpose of sharing, exchanging, or trading files with other users (as opposed to the Tenth Circuit’s position, which holds that the enhancement does not always apply to peer-to-peer file sharing network users, because defendants do not always use these networks with the expectation of receiving other users’ files in return). The Fourth Circuit found that no error had been committed in the application of this enhancement.

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