United States v. Cubero: Panel Rejects Double-Counting Challenge to Guidelines Enhancements for Distribution of Child Pornography While Stating that February 2013 Sentencing Commission Report Does Not Render Non-Production Child Pornography Guidelines Invalid

United States v. Cubero, No. 12-16337, from SDFla

Circuit Judge Hull joined by Senior Circuit Judge Cox and Senior Circuit Judge Farris (9^th Cir.)

Summary: The defendant appealed his sentence of 151 months (and a life-term of supervised release) after pleading guilty to one count of distribution of child pornography and two counts of possession of child pornography, arguing that his sentence was procedurally and substantively unreasonable.

The defendant admitted that he used a peer to peer file sharing network on his home computer to download and view child pornography and placed some of his child pornography into a shared folder on his computer that allowed other people to access the files.

The defendant challenged the reasonableness of his sentence under the Guidelines, which is evaluated under a two-step process: (1) did the district commit any significant procedural error?; and (2) is the sentence substantively unreasonable under the totality of the circumstances? 

First, the defendant raised a double-counting challenge.  18 U.S.C. § 2252(a)(2) criminalizes the knowing receipt or distribution of any visual depiction of child pornography or the knowing reproduction of any such visual depiction for distribution.  The Guidelines provide a base offense level of 22 for this offense and also call for a two level increase if the defendant distributed child pornography.  The defendant argued that the two level increase added for distribution was double-counting, because distribution was an essential element of the underlying offense.

The panel rejected this argument because a violation of 18 U.S.C. § 2252(a)(2) may occur where the defendant knowingly distributes child pornography and where the defendant knowingly receives or reproduces child pornography.  Thus, distribution is not an essential element of the offense and is not required to violate 18 U.S.C. § 2252(a)(2). The Sentencing Commission acted within its authority by differentiating between the potential harm caused by receipt and by distribution by providing a two-level increase for distribution.

Second, the defendant argued he was entitled to a two-level decrease because his conduct was limited to the receipt or solicitation of child pornography and/or he did not intend to traffic in or distribute such material.  This argument was rejected in short order, since the defendant had pled guilty to knowingly distributing child pornography.

Third, the panel rejected a smorgasbord of general challenges to the procedural reasonableness of the sentence.

Fourth, the defendant raised a substantive reasonableness challenge to his sentence and supervised release term. The panel noted that the 151 month sentence was at the bottom of the guidelines range and well-below the statutory maximum, which were two indicators of reasonableness. 

Fifth, and lastly, the panel spent eight pages discussing a February 27, 2013 report issued by the U.S. Sentencing Commission regarding federal child pornography offenses (the panel chose to address the report because the defendant had made it a “centerpiece” of his appeal).  The report concluded that the current non-production guidelines warranted revision because the enhancements did not account for an offender’s use of modern technology and are thus outdated and disproportionate, the Guidelines failed to account fully for some offenders’ involvement in child pornography communities, and the Guidelines produce overly severe sentencing ranges for some offenders, unduly lenient ranges for other offenders, and widespread inconsistent application.  The report further questions the appropriateness of the current Guidelines for non-production cases where the offender used peer-to-peer file sharing and the Internet to receive and distribute pornography.  The report agrees with the DOJ’s recommendation that Congress must enact legislation providing the Commission with express authority to amend the current guidelines provisions because the non-production  child pornography guidelines were promulgated pursuant to specific congressional directives.

The panel agreed with the government that the Commission’s report did not render the non-production child pornography Guidelines invalid. The panel specifically noted that the absence of empirical evidence is not an independent ground that compels the invalidation of a guideline (cf. Kimbrough v. United States, 552 U.S. 85 (2007), which held that a lack of empirical evidence supporting a guideline was one factor a court could consider in exercising discretion to depart from the guidelines).

The defendant’s sentence was accordingly affirmed.