Press Release provided by Thomas Carver on September 5, 2016
A new amendment from the United States Sentencing Commission will go into effect November 1, 2016 and could have a major impact on child pornography possession and distribution cases.
The USSC recently promulgated amendments to the Sentencing Guidelines. A key change for attorneys who handle sex crime cases is the language of USSG § 2G2.2(b)(3)(B)’s 5-level enhancement.
The attorneys at Carver, Cantin & Mynarich, a team of Missouri sex crime lawyers believe the new amendment may reduce the number of cases in which the enhancement is applied.
Most child pornography possession and receipt/distribution cases involve a defendant who used a peer-to-peer file-sharing program, such as Limewire, FrostWire, Ares, or BitTorrent. When the Probation Office is calculating these defendants’ United States Sentencing Guidelines, they consistently apply USSG § 2G2.2(b)(3)(B)’s 5-level enhancement on the grounds that the use of the file-sharing program proves “distribution for the receipt, or expectation of receipt, of a thing of value.”
One change to the child pornography guidelines is to the language of USSG § 2G2.2(b)(3)(B)’s 5-level enhancement.
Under the new language, the enhancement applies only if “the defendant distributed in exchange for any valuable consideration,” but not for pecuniary gain. The new guidelines commentary defines this new language to mean “the defendant agreed to an exchange with another person under which the defendant knowingly distributed to that other person for the specific purpose of obtaining something of valuable consideration from that other person, such as other obscene material, preferential access to obscene material, or access to a child.”
This “for the specific purpose of obtaining something” language seems to encompass Judge Colloton’s point that the distribution must not be merely gratuitous for the 5-level enhancement to apply.
We will have to wait until after November to see if the new language actually curbs the application of the enhancement.
About: Carver, Cantin & Mynarich are a highly skilled team of criminal defense lawyers in Springfield, Missouri. The firm specializes in sex crime cases, Internet crimes, sex offender registration issues, and complicated white collar tax crime cases. The firm possesses considerable experience, having tried over 450 federal criminal cases and many more at the state level in Missouri.