Federal Sentencing Guidelines – Part 2

In this blog, I will discuss how the United States Sentencing Guidelines, or “USSG”, can affect a defendant’s sentence in two separate types of cases that frequently appear in federal court. The first type of case involves illegal drugs. As society’s views of illegal drugs have changed, so to have the USSG. The number of people using drugs and their growing acceptance have led the USSG to evolve and become a bit more lenient as it relates to certain drug offenses.

The second type of case is child pornography. As technology has evolved to a point where nearly everyone has a smartphone and internet access — devices that are virtual playgrounds for unlimited access to sexual images — child pornography cases in the federal courts have skyrocketed. There are more child pornography cases now than ever before. I will examine how the USSG has special rules for formulating sentences in cases of child pornography.

In my previous blog, I discussed the process a sentencing court goes through in applying the USSG to a given defendant. Now, I will demonstrate how the USSG process can present unique situations with both drug-related offenses and child pornography cases.

Drug-Related Offenses – In drug cases, the USSG is largely driven by quantities. A key ingredient of the sentencing formula in any drug case is the quantity of a controlled substance for which a convicted defendant will be held accountable. The clear intention of Congress was to sentence “manufacturers” and “traffickers” of controlled substances more harshly than non-manufacturers and traffickers. Put differently, Congress enacted the USSG with a policy that treats “users” differently than “sellers.”

Just like any other crime, the first-step in calculating a guideline sentence under the USSG for a drug-related offense requires the sentencing court to determine the offense conduct. Because the USSG places a premium on the quantity of drugs, a sentencing court’s first inquiry must be to determine the amount of drugs a defendant is responsible for. A defendant is responsible for all drug quantities that are included within the scope of his relevant conduct, as that term is defined by the USSG. United States v. Gill, 348 F.3d 147 (6^th Cir. 2003). The broad definition of relevant conduct is as follows: “(A) all acts and omissions committed, aided, abetted, counseled, commanded, induced, procured, or willfully caused by the defendant; and (B) in the case of a jointly undertaken criminal activity (a criminal plan, scheme, endeavor, or enterprise undertaken by the defendant in concert with others, whether or not charged as a conspiracy), all acts and omissions of others.” 18 USCS Appx § 1B1.3.

The broad language of § 1B1.3 captures just about any drugs recovered during a particular arrest. For example, if a person aided, abetted, or even just caused a defendant to undertake a criminal activity involving drugs, then that person’s relevant conduct includes any drugs seized as part of a lawful arrest. Under such broad language any street user who carries or delivers product for a seller or manufacturer of a controlled substance would be subjected to sentencing enhancement under the USSG.

This heavy-handed enhancement language of the USSG at first-blush seems to undermine Congress’s goal of treating defendants with smaller amounts of drugs less harshly than those dealing in drugs. However, what the enhancement does is provide Assistant United States Attorneys with another tool in criminal prosecutions. Many low-level users who are facing sentencing enhancements can rid themselves of the punitive aspects of the USSG by turning on the dealers and providing the AUSA’s with valuable evidence about the dealers they work for.

While the USSG seems to punish drug-related offenses harshly, there are still other elements that reduce or minimize their impact in most situations. The doctrine of proportionality is common throughout the American legal system. The idea behind proportionality is that the greater the offense, then the greater the punishment. The corollary to this position is that proportionality requires less severe actions to be punished less severely.

Proportionality applies to drug-related cases at the federal level. The Sixth Circuit Court of Appeals has held that the “failure to distinguish the amount of drugs possessed for personal use from the amount possessed for distribution contravenes a fundamental principle of the U.S. Sentencing Guidelines Manual – proportionality in sentencing – because it would result in sentencing a drug user who possessed 50 grams for personal use and gave one gram away more harshly than a drug dealer who possessed 49 grams for distribution.” United States v. Gill, 348 F.3d 147 (6^th Cir. 2003). Therefore, it becomes critical for a defendant being sentenced for a drug-related case to litigate the issues related to drug quantity, and whether the quantities were for personal use vs. indicia of distribution or even manufacture.

Relevant conduct and proportionality represent two unique aspects of how the USSG addresses drug-related cases. There are many other nuances that could enhance or reduce a guideline sentence in a particular case. Any discussion of the USSG as it applies to drug-related cases would be neglect to omit a pro-defendant adjustment for taking responsibility. The USSG grants a two-level (and sometime three level) reduction when a defendant takes responsibility for his/her criminal conduct. USSG §3E1.1. This reduction is common place with drug-related cases — and many other cases at the federal level. A two-point reduction in base-level can lead to a significant reduction in a defendant’s sentence.

Child Pornography – Another common type of case in the federal courts is child pornography. Congress has sought to punish more severely what it perceives as the more dangerous cases of production of child pornography over the less severe possession of child pornography. The distinction of production versus possession of child pornography is dramatic under the USSG – starting with what is called a mandatory minimum for production. A mandatory minimum is exactly what it sounds like – that is a statutory creation by Congress that ties the hands of the sentencing judge, and forces a judge to sentence an offender to a sentence no less than an established mandatory minimum. An offender convicted of distributing (or even sharing) child pornography will face a mandatory minimum of five years in prison, while one convicted of production of child pornography faces a 15 year mandatory sentence.

Mother important distinctions between distribution and manufacture, versus simple possession of child pornography are seen in an increased base-level for production of child pornography at 22, as compared to 18 for simple possession. In addition, to the base-level differences, the following list of enhancements commonly raises the USSG offense conduct for production of child pornography:

2. If the material involved a prepubescent minor or a minor who had not attained the age of 12 years, increase by 2 levels.
3. (Apply the greatest):
   1. If the offense involved distribution for pecuniary gain, increase by the number of levels from the table in § 2B1.1 (Theft, Property Destruction, and Fraud) corresponding to the retail value of the material, but by not less than 5 levels.
   2. If the defendant distributed in exchange for any valuable consideration, but not for pecuniary gain, increase by 5 levels.
   3. If the offense involved distribution to a minor, increase by 5 levels.
   4. If the offense involved distribution to a minor that was intended to persuade, induce, entice, or coerce the minor to engage in any illegal activity, other than illegal activity covered under subdivision (E), increase by 6 levels.
   5. If the offense involved distribution to a minor that was intended to persuade, induce, entice, coerce, or facilitate the travel of, the minor to engage in prohibited sexual conduct, increase by 7 levels.
   6. If the defendant knowingly engaged in distribution other than distribution described in subdivisions (A) through (E), increase by 2 levels.
4. If the offense involved material that portrays (A) sadistic or masochistic conduct or other depictions of violence; or (B) sexual abuse or exploitation of an infant or toddler, increase by 4 levels.
5. If the defendant engaged in a pattern of activity involving the sexual abuse or exploitation of a minor, increase by 5 levels.
6. If the offense involved the use of a computer or an interactive computer service for the possession, transmission, receipt, or distribution of the material, or for accessing with intent to view the material, increase by 2 levels.
7. If the offense involved—
   1. at least 10 images, but fewer than 150, increase by 2 levels;
   2. at least 150 images, but fewer than 300, increase by 3 levels;
   3. at least 300 images, but fewer than 600, increase by 4 levels; and
   4. 600 or more images, increase by 5 levels.

18 USCS Appx § 2G2.2

We can see through each of these enhancements how Congress is punishing more severely the greater evils a defendant commits. The even more clear message from Congress is that a person who “traffics” in child pornography will suffer a greater guideline sentence under the USSG.

While the aforementioned enhancements frequently combined to seriously increase the guideline range for an offender convicted of distribution or manufacture of child pornography, there is still another enhancement in the USSG for sexual exploitation of a minor. Through a complex system of enhancements, as well as “cross-referencing,” the USSG contains several additional traps frequently requires courts to elevate a defendant’s base-level. Cross referencing occurs when a defendant is convicted of one offence, say the Internet solicitation of a minor, but the guidelines allow a court to score the offenders offense level under a different guideline, such as production of child pornography. Examples of other enhancements include the situation when a defendant engages in a prohibited sexual act on more than one occasion, he is subjected to a five-level enhancement of his base level for being a repeat and dangerous sex offender, even if this his first conviction of any kind. USSG 4B1.5(b). A five-level enhancement could raise a particular defendant’s sentence by many years.

These are but two examples of the nuances contained in the USSG that can impact defendants guilty of different types of child pornography. Like drug-related offenses, there are a number of other enhancements and adjustments that could add to or minimize a guideline sentence in a particular situation.

Summary – This blog looked only at the offense conduct portion of the USSG for drug and child pornography offenses. A similar analysis is required for any type of criminal conviction to formulate a guideline sentence under the USSG. The offense conduct is but one of two parts central to determining a guideline sentence. A defendant’s criminal history must also be evaluated to determine a guideline sentence in any case —something we will dive into with the next blog.

The complexity of any offense conduct — whether drug-related, child pornography, or otherwise — requires accurate analysis of the base-level with adjustments for the underlying crime. Just one missed opportunity or mis-application of a defendant’s offense conduct can lead to a defendant spending extra years — even decades — behind bars.

Before you find yourself serving decades in a federal prison, consult with an expert. Give Mark A. Satawa a call to find out more about how the Federal USSG may affect your case.