US v. Morehouse: Morehouse pleaded guilty to distribution of child pornography. He explained to investigators that he was trying to “build a case” against CP traffickers and that he shared videos and images to get other images and videos so that he would “catch” others in the act of distribution. At sentencing, the district court imposed a five-level enhancement for “distribution in exchange for valuable consideration.” Morehouse objected on factual grounds. The district court overruled the objection and sentenced Morehouse to 84 months in prison, a slight downward variance from the advisory Guideline range.
On appeal, the Fourth Circuit vacated Morehouse’s sentence because it was procedurally unreasonable due to the imposition of the five-level enhancement. The court agreed that the district court had been guided by a prior Fourth Circuit decision about the enhancement that had been superseded by a 2016 Guideline amendment. Prior to the amendment, the enhancement could apply if a defendant made CP available in the hopes of getting something in return, even if he never succeeded. After the amendment, however, replaced “expectation” in the Guideline with “in exchange for,” which the court concluded narrowed the enhancement’s application to only cases where there was a “two-sided exchange” with an actual second party. While the enhancement would have applied under the old Guideline, it did not apply in a case like Morehouse’s under the current Guideline.
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