US v. Cox: In this appeal, the Fourth Circuit considered a challenge to the application of a sentencing guideline cross-reference, which application resulted in a 13-level increase to the defendant’s sentence. The sentencing guideline in play was U.S.S.G. § 2G2.2, governing possession of material depicting the sexual exploitation of a minor.
Mr. Cox pleaded guilty to faking his death which caused to Coast Guard to search for him off the Carolinas when he was hiding out in Florida; and also to his knowing possession of material containing images of child pornography. Mr. Cox had in his possession multiple polaroid images he had taken while he sexually abused his minor niece. At sentencing, the district court determined that Mr. Cox was responsible for causing a minor to engage in sexually explicit conduct "for the purpose of" producing a visual depiction of that conduct.
On appeal, Mr. Cox claimed that the district court improperly applied the cross-reference found in the sentencing guideline that pertains to the possession of material depicting the sexual exploitation of a minor. The cross-reference applies when the offense conduct involved causing a minor to pose for the purpose of producing a visual depiction of the criminal conduct. Mr. Cox argued that there was insufficient evidence to support a finding that he acted for the purpose of producing a visual depiction, though he did not dispute that he caused the victim to engage in sexually explicit conduct, nor that he took pictures; rather, he contended that taking the pictures was not a "central component" of the criminal activity.
The Fourth Circuit agreed with the Ninth and Seventh Circuits on this issue, that producing the depiction need not be the defendant’s sole or primary purpose. The cross-reference’s "purpose" requirement "is satisfied anytime one of the defendant’s purposes was to produce a visual depiction" of the criminal conduct. The Fourth Circuit affirmed the application of the cross-reference.