Defendant Cannot “Cause” Production of Videos Already In Existence

US v. Avila: Avila pleaded guilty to multiple counts of receiving or distributing child pornography. The probation officer recommended that a Guideline cross reference apply because Avila’s conduct “involved causing . . . a minor to engage in sexually explicit conduct for the purpose of producing a visual depiction of such conduct.” Avila objected, arguing that the videos at issue had already been made by the minors and thus he had not “caused” them to be produced. The district court disagreed and imposed a sentence of 132 months (below the 168-210 month Guideline range).

On appeal, the Fourth Circuit vacated Avila’s sentence. The court held that where, as here, the Government proceeded only on the theory that the defendant had “caused” videos to be produced, the fact that they had been produced prior to the defendant’s request for them prevented the cross reference from applying. Specifically, there was no finding from the district court that “at least one victim made sexually explicit videos after and in response to Avila’s request.”

Congrats to the Defender office in Western North Carolina on the win!