Image-Count Enhancements: How 600 Files Changes Your Sentence.

The 600-image mark is the threshold for the maximum enhancement under the federal sentencing guidelines for possession of child pornography under U.S.S.G. §2G2.2(b)(7). While reaching 600 images triggers a five-level addition to an individual’s offense level, it also carries a couple of important nuances.

First, although reaching 600 images adds five levels to the defendant’s offense level, this does not trigger a separate statutory mandatory minimum.

Second, because offense levels are just one of many factors involved in sentencing, five additional levels do not translate into any specific fixed prison term.

For a Category I offender, the Sentencing Table suggests a sentencing range of 27 to 33 months for level 18 and 46 to 57 months for level 23. Possession-related offenses under U.S.S.G. §2G2.2 generally start at offense level 18.

Furthermore, in 2019, more than 95 percent of “nonproduction” offenders (i.e., possessors) also received a “computer-use” enhancement. The computer-use provision is governed by U.S.S.G. §2G2.2(b)(6) and is a separate provision from §2G2.2(b)(7).

Reaching the 600-image threshold adds an additional five levels to the offender’s offense level. And if the offender is found to have used a computer to receive, view, store, create, transfer, transmit, or disseminate child pornography, this also adds an additional enhancement.

While these enhancements will be added together for the purposes of calculating the sentencing range, that is not the only thing that will have to be factored into the sentencing calculations. However, in order to successfully defend against these enhancements, you must also be able to successfully challenge the federal authorities’ computer forensic analysis.

How is the Federal Image-Count Enhancement Calculated?

The image-count sentencing enhancement for possession of child pornography is governed by U.S.S.G. §2G2.2(b)(7). The provision states:

“If the offense involved (i) the possession of child pornography, and, (ii) the following number of images or videos of child pornography or child pornography containing images or videos:

(A) 10 to 149 images or videos, add 2 offense levels

(B) 150 to 299 images or videos, add 3 offense levels

(C) 300 to 599 images or videos, add 4 offense levels

(D) 600 or more images or videos, add 5 offense levels”

Under the federal sentencing guidelines, there is no enhancement for possessing fewer than 10 child pornography images or videos.

Example 1: 3-Image Possession

At the federal sentencing table, possession is categorized under Offense Level 18. If you are a Category I offender, the guidelines recommend a prison term of 27-33 months.

A 3-image possession case will not be subject to any additional image count enhancement. And, you will not need to worry about the “computer use” enhancement either, because in order for you to have a “computer in your possession” in a 3-image possession case, the computer would have to have held the 3 images, and any number of images under ten does not create a statutory or guideline-based enhancement under U.S.S.G. §2G2.2(b)(7).

Example 2: 4-Image Possession

Similarly, with a 4-image possession case, if you are Category I offender, you are still looking at a potential prison term of 27-33 months. However, in this case, you would need to worry about the computer-use enhancement as well.

A 5-image possession case would have the same Sentencing Table recommendations, and would have the same computer-use concerns as well. And as would a case with six, seven, eight, or nine images.

Example 3: 10-Image Possession

If, however, you possessed 10 child pornography images or videos, this would be a different situation. As stated under U.S.S.G. §2G2.2(b)(7) (A), “10 to 149 images or videos, add 2 offense levels”. So, in this case, the Sentencing Table recommends moving from 18 (the base offense level for possession) to 20. If you are a Category I offender, then 20 is 33 to 41 months in prison.

Example 4: 20-Image Possession

Similarly, if you possessed 20 images or videos of child pornography, the image count enhancement would remain 2 offence levels (moving your offence level from 18 to 20). Assuming that you were a Category I offender, the recommended prison term would remain 33 to 41 months.

Example 5: 150-Image Possession

However, reaching 150 images or videos is different. Under U.S.S.G. §2G2.2(b)(7)(B), possessing 150 to 299 images or videos results in a 3-level addition to the base offense level of 18, which equals 21. And as a Category I offender, the Sentencing Table gives a range of 37 to 46 months.

Does 600 Digital Files Mean 600 Countable Images?

If you possess a collection of 600 files, this does not necessarily mean that you possess 600 countable images. Under the commentary to U.S.S.G. §2G2.2, one video of child pornography counts as 75 images for the purpose of determining the defendant’s offense level. So, if you possess a collection of only 8 videos of child pornography, this counts as 600 images under the federal sentencing guidelines.

Likewise, if you possess a collection of 600 image files, this does not necessarily mean that you have 600 countable images, because not all image files are created equal. For example, if you possess a collection of 600 child pornography image files that consists of 200 full images, 300 thumbnails of larger images, and 100 files containing fragments of child pornography images, then you possess only 200 countable images for the purposes of sentencing.

So, What Should it Take to Defend Against an Image-Count Enhancement?

This is where the computer forensic review comes into play. It is also where an experienced computer forensic professional should be involved in your defense.

At our law firm, we will rely on our computer forensic team to review your computer, and then we will use the conclusions from that review to challenge the counts that the federal government is accusing you of. Specifically, we will rely on our computer forensic experts to check for the following:

• Exclusion of All Non-CSAM Files, We will make sure that all non-CSAM files, system files, computer graphics, software files, and documents are excluded from §2G2.2(b)(7) image counts.
• Full Forensic Review of Thumbnails and Partial Image Files, To determine whether to exclude thumbnails and partial image files, we must rely on our computer forensic expert’s review of each file. The expert’s job is to evaluate whether these partial image files are themselves CSAM, or if the federal authorities miscounted.
• Conversion of Mixed Media Files, If a mixed media file exists (i.e., there are some images, some videos, and no more than 600 child pornography files in total), the video content will be converted into images before we can use them to assess your total countable images under §2G2.2(b)(7). For example, if you have seven videos and 75 still images in your possession, this equals 600 images under the federal sentencing guidelines.
• Full Review of the Browser Cache and Thumbnail Index Database, These two sources of files present unique challenges, and they must be carefully reviewed. The browser cache automatically stores images while you surf the internet, so the possession of these images is not a conscious act. Thumbnail index databases also present a unique challenge; they contain small previews of files that are no longer present, and thus, they should not be counted as images for sentencing purposes.

Can Deleted or Inaccessible Images Count Toward 600?

Under U.S.S.G. §2G2.2, the counting of child pornography images does not distinguish carved files from parsed files.

Parsed media (i.e., media accessible through the device’s file system) and carved media (i.e., media recovered from the hard drive’s unallocated space without relying on file-system records) are both treated as countable images. The fact that carved images are “ordinarily inaccessible through ordinary use of a computer” does not prevent them from being counted as countable images.

However, under the federal sentencing guidelines, the mere fact that a carved image exists does not establish whether it is in the defendant’s possession. This is because reaching 600 images requires a finding that the defendant “knowingly” possessed the images. The recovery method alone does not prove the defendant’s consciousness of possession, so the prosecution must still prove that the defendant knowingly possessed the recovered images.

Is Possessing Images from Unallocated Space Evidence of Guilt?

Not by itself. That is why, when your computer is seized, it is necessary to conduct a complete forensic search to determine if the computer contains evidence to refute your guilt or to explain away the federal authorities’ findings.

Along with searching for a comprehensive, chronological search history and browsing history, we will look for any evidence of “system-generated” files, browser-cache content, thumbnail index databases, and other types of evidence that could rebut the prosecution’s case.

By fully understanding the scope of our client’s potential culpability, we can then develop an informed strategy for defending against any child pornography charges.

What Evidence Did the Court Consider in the Keefer Case?

In United States v. Keefer, the court had to determine if images carved from unallocated space counted as Possession of Child Pornography.

The court found that the evidence from unallocated space should be counted as images in Defendant’s possession because the government was able to point to “other forensic evidence to indicate that” the Defendant was “aware of the images’ existence.”

As a result, images recovered from unallocated space in the Keefer case were counted as images in the Defendant’s possession.

How Many Images Did the Defendant in the Keefer Case Possess?

The prosecution counted 1,254 images in the Defendant’s possession in United States v. Keefer, of which 1,215 came from unallocated space and only 39 from allocated space. However, the Defendant reached the 600-image mark only when evidence from unallocated space was included.

Ultimately, the images the government discovered in unallocated space did count as images in the Defendant’s possession, adding an additional five offense levels to the base offense level for possession, according to U.S.S.G. §2G2.2(b)(7).

Todd Spodek and the attorneys at Spodek Law Group handle federal cases of this kind from New York, Brooklyn, Queens and Los Angeles.

How Can the Defense Challenge the Government’s Image Count?

The image count is an example of a factual issue that must be resolved at sentencing.

At sentencing, guidelines facts should generally be proven by a preponderance of the evidence (i.e., it is more likely than not that the fact in question is true). However, the fact that the government has a preponderance of evidence does not mean that the government cannot be proven wrong.

In some cases, a federal defendant’s presentence report (PSR) will already include the image count that the federal authorities are basing the image-count enhancement. If the Defendant fails to make an objection to the PSR, then the counts will most likely be accepted as true at sentencing.

Therefore, if your PSR includes inaccurate counts, it is critical to raise an objection as quickly as possible. Under Federal Rule of Criminal Procedure 32(f)(1), “Within 14 days after receiving the presentence report, the parties must state in writing any objections, including objections to material information, sentencing guideline ranges, and policy statements contained in or omitted from the report.”

Under Rule 32(i)(3)(B), “the court must, for any disputed portion of the presentence report or other controverted matter, rule on the dispute or determine that a ruling is unnecessary either because the matter will not affect sentencing, or because the court will not consider the matter in sentencing.” The federal judge presiding over the case then has the authority to decide whether the government has proven any specific facts that impact the sentencing of the Defendant.

Notably, the prosecution can pursue evidence showing that the defendant knowingly possessed and received 600 or more images or videos of child pornography even if the prosecution does not pursue charges beyond what the government alleged in the federal indictment. This is because relevant conduct under U.S.S.G. §1B1.3 may be proven by any evidence that “shows “all acts and omissions committed, aided, abetted, counseled, commanded, induced, procured, or willfully caused by the defendant” that “occurred during the commission of the offense of conviction, in preparation for that offense, or in the course of attempting to avoid detection or responsibility for that offense”.”

Even though the image count is determined during the sentencing process, defendants who are facing criminal charges for possession of child pornography should engage their computer forensic expert promptly. With that being said, the defense’s forensic expert should not rely solely on the government’s forensic report. If possible, the defense expert should review the original forensic image to ensure that no errors were made during the federal authorities’ forensic analysis.

The defense forensic expert should review the file acquisition logs, verify that the prosecution has a list of hashes of the relevant files, and verify the original file paths. These are all critical pieces of evidence to have on hand when defending against an image-count enhancement.

Does Possessing a Single Image Establish Possession of Child Pornography?

In most cases, yes. But, there are cases that involve only images of simulated child pornography, so proving that the government has proven that the image counts toward possession can be a powerful tactic for the defense.e., in computer-generated child pornography), the government may meet its burden by proving that the images exist on the defendant’s computer and that the defendant knew of the images’ location.” Although Ross was a case involving computer-generated child pornography (which may not be considered real-person imagery), the court also noted that “the images contained thumbnails which showed a clearly identified person.” This demonstrates the importance of a thorough forensic review.

Does Reaching 600 Images Guarantee Years in Prison?

Regardless of whether a defendant possesses 600 or more countable images, the court must still follow these steps:

• (i) calculate the appropriate Sentencing Guidelines range;
• (ii) evaluate the relevant factors under 18 U.S.C. §3553(a);
• (iii) decide whether to vary from the Guidelines’ recommendations for sentenced defendant’s prison term.

While 18 U.S.C. §3553(a) provides courts with a broad range of sentencing options, mandatory minimums limit this discretion in most child pornography cases.

As a consequence of this limitation, defendants’ only hope for avoiding the potential for sentencing beyond the Sentencing Table range, or even falling within the Sentencing Table range, is to engage defense counsel promptly.

Depending on the specific counts you are accused of, the following statutory requirements will apply in your case:

• First-Offense Possession, An individual convicted of possession under 18 U.S.C. §2252A faces a possible ten-year prison term. However, there is no mandatory minimum for possession cases under §2252A.
• Receipt and Distribution, In contrast to possession cases, cases involving receipt and distribution carry a five-year mandatory minimum.

While, for a first-offense possession case, reaching 600 images could potentially land you in prison for up to 10 years, your sentence could still end up on the lower end of the spectrum, even with a high image count.

This is because judges are not bound to stick to the Sentencing Table, and statistics from the United States Sentencing Commission confirm this. According to the Commission’s 2023 data, only 33.7 percent of “offenders convicted of the crime of possession of child pornography” received within-Guidelines sentences.

It is also important to understand the judge’s duty in terms of the Guidelines. A judge’s disagreement with the underlying policy of §2G2.2 does not excuse the court from its duty to correctly calculate a Guidelines sentence for the defendant. So, if you are facing a five-level enhancement for possessing 600 images, the court must do the math before it can make any decision regarding your sentence.

Can a Judge Choose Not to Consider the Five-Level Sentencing Enhancement Under U.S.S.G. §2G2.2(b)(7)?

While judges may disagree with the policy of sentencing individuals for child pornography based on the total number of images in their possession, they must still adhere to a specific process.

According to U.S.S.G. §1B1.1 and 18 U.S.C. §3553(a), if a judge chooses to decline to apply a five-level enhancement, he or she must explain his or her reasoning during the sentencing.

So, when you reach the point of sentencing, we can rely on our previous forensic work to show that you did not knowingly possess a large volume of images. By doing this, we can effectively mitigate the threat of a five-level image-count enhancement.

Can the Zero-Point Offender Reduction Lower This Sentence?

Assuming that your sentencing guidelines calculation reflects a criminal history score within Criminal History Category I, you may be eligible for the “zero-point offender” reduction under U.S.S.G. §4C1.1.

If eligible, this reduction will subtract two levels from your total offense level. However, there are a couple of important caveats.

First, in order to qualify as a zero-point offender, a defendant must satisfy ten different eligibility criteria under U.S.S.G. §4C1.1. As a result, the fact that you are a Category I offender is not sufficient to establish your eligibility for a zero-point offender sentencing reduction.

Second, under U.S.S.G. §4C1.1 commentary, most offenses under the law that a defendant would be charged with for possessing child pornography images will be classed as “sex offenses.” As a consequence of this classification, a defendant will be ineligible for the zero-point offender reduction if the image count in their possession is high enough to make the offense one that involves the possession of child pornography images from two or more different children.

Third, the zero-point offender reduction cannot be used to reduce a defendant’s sentence below the applicable mandatory minimum, if applicable. So, even if you are eligible for the zero-point offender reduction, this will not help you avoid the five-year mandatory minimum if you are guilty of receiving or distributing child pornography.

Fourth, although Criminal History Category I includes defendants with a criminal history of zero or one points, the zero-point offender reduction under U.S.S.G. §4C1.1 applies only to defendants who have zero criminal history points.

Fifth, the zero-point offender reduction cannot result in an offense level of 10 or less.

Speak With a Federal Defense Lawyer

If you are dealing with any part of what this article describes, the next step is a conversation with a lawyer who handles these cases. Spodek Law Group is a second generation criminal defense firm practicing since 1976, representing clients nationwide from offices in New York, Brooklyn, Queens and Los Angeles. Call 212-300-5196 to speak with our team.