Archive | child pornography

Today, in United States v. Jenkins, the Second Circuit concluded that a 225-month sentence for the possession and transportation of child pornography was substantively unreasonable and vacated and remanded for resentencing, concluding that the district court’s sentence “went far overboard” and was “shockingly high”  Opinion at 11, 12.

Jenkins was convicted after trial of one count of possession of child pornography (18 U.S.C. 2252A(a)(5)(B)) and one count of transportation of child pornography (18 U.S.C. 2252A(a)(1)).  He was sentenced to concurrent time of 120 months on the possession count (the statutory maximum) and 225 months on the transportation count (just below the statutory maximum of 240 months), and to 25 years of supervised release.  The child pornography he possessed (and brought with him on a family vacation to Canada) was for personal use.  He did not produce or distribute child pornography and did not attempt to contact a minor.  This …

Last week, the Second Circuit vacated the sentence in United States v. Bennett, No. 15-0024 (“Opinion”). The Court held that, in order to justify the 5-level enhancement under U.S.S.G. 2G2.2(b)(3)(B) for distribution of child pornography “for the receipt, or expectation of receipt, of a thing of value,” “the Government must advance specific, individualized evidence that [a defendant] provided access to his collection of child pornography to another user with the expectation that that user would provide similar access to other child-pornography files.” Opinion at 15. In this case, the Court held the 5-level enhancement was justified because the defendant had engaged in the quid pro quo exchange of passwords protecting child pornography files with other users. Despite finding that the enhancement applied, the Circuit vacated the sentence and remanded for resentencing because the District Court (Sullivan, J.) failed properly to calculate the applicable guideline to reflect the fact that, because …