Sentencing Enhancements for Age, Conduct, and Sadistic Content.

The impact of sentencing enhancements varies. U.S.S.G. § 2G2.2 (b)(2) adds two levels for the possession of CSAM depicting children who are prepubescent or under twelve years of age, while U.S.S.G. § 2G2.2 (b)(4) adds four levels for depictions that are sadistic, masochistic, or violent in nature. In many cases, a four-level enhancement can add years to a defendant’s advisory sentencing range.

The applicability of these enhancements is often determined by circuit precedent. Thus, a federal circuit’s specific case law can play a large role in sentencing. Indeed, it is possible for the same content to receive the sadistic-content enhancement in one circuit, but not in another.

U.S.S.G. § 2G2.2 contains two specific enhancements:

• The Section 2G2.2 (b)(2) enhancement applies when the CSAM involves a child who was “prepubescent, or prepubescent-appearing, or who was under 12 years of age.”
• The Section 2G2.2 (b)(4) enhancement applies when 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.”

These enhancements can increase a defendant’s offense level.

Higher offense levels (generally) translate to longer advisory Guidelines ranges.

This often increases the chance that the defendant will receive a prison sentence rather than probation.

The imprisonment rate reported in the Sentencing Commission’s Sourcebook of Federal Sentencing Statistics is a sentencing statistic, not a conviction statistic.

A significant number of federal offenses carry a very high imprisonment rate.

The application of U.S.S.G. § 2G2.2 is limited to non-production cases; production offenses are sentenced under U.S.S.G. § 2G2.1.

The United States Sentencing Commission is the body that provides sentencing guidelines and commentary to the federal court system.

Do These Sentencing Enhancements Create Mandatory Minimum Prison Terms?

A sentencing enhancement is different from a mandatory minimum sentence. A mandatory minimum creates a “floor,” or minimum sentence that a judge cannot lower except in extremely limited circumstances. A sentencing enhancement (like the one for the receipt or distribution of sexual abuse material to a minor) just increases the “Guidelines range” that is recommended for the defendant.

We explain to our clients that, due to the 2005 Supreme Court case United States v. Booker, the Sentencing Guidelines are now “advisory” in nature rather than “binding.” The Supreme Court made this change because it determined that mandatory guidelines violated the Sixth Amendment right to trial by jury, since they permitted a judge to increase a sentence based on facts that were never found by a jury beyond a reasonable doubt or admitted by the defendant.

This means that, when sentencing a defendant for a federal crime, a judge must consider both the “guidelines calculation” and the defendant’s “sentencing factors” under 18 U.S.C. § 3553(a).

Under 18 U.S.C. § 2252A(b)(4) (which covers both receipt and distribution of child sexual abuse material), the statutory range is five years to twenty years. Under 18 U.S.C. § 2252A(b)(2) (which covers first-offense possession of child sexual abuse material), the range is zero years to ten years, rising to a maximum of twenty years if any image involved a prepubescent minor or a minor who had not attained 12 years of age.

As the U.S. Sentencing Commission has reported in its studies of mandatory minimum penalties in the federal criminal justice system, a mandatory minimum bars the judge from imposing a below-range sentence even when the judge agrees that the Sentencing Guidelines are too high.

Importantly, while a sentencing enhancement can increase the recommended Guidelines range, it cannot authorize imprisonment above the statutory maximum sentence for a particular crime.

This ensures that criminal defendants will be convicted for their crimes, but that federal courts will only hand out as much punishment as is necessary to meet the statutory requirements.

According to 18 U.S.C. § 3553(a)(2), the purpose of a criminal sentence is to: (i) punish the defendant, (ii) deter future crimes of the same nature, (iii) protect the public, and (iv) provide the defendant with needed medical or vocational treatment.

What Facts Trigger Age and Sadistic-Content Enhancements?

When the Sentencing Commission refers to “the victim’s age,” this is referring to the depicted child’s age (not the defendant’s age). Thus, disputes involving the victim-age enhancement will depend on the material’s content (as opposed to the defendant’s intent).

Similarly, disputes involving the sadistic-content enhancement will often depend on what the material visually portrays.

• A defendant does not need to know the actual identity of the child depicted in the material to qualify for the Section 2G2.2(b)(2) enhancement;
• The court can look at the image itself to determine whether a child depicted in the image appears prepubescent or under the age of twelve;
• If the defendant does not appear to have any knowledge of the child depicted in the image, courts have also turned to expert testimony to determine the child’s age (and/or the child’s stage of puberty);
• In fact, U.S.S.G. § 2G2.2(b)(2) contains no knowledge requirement, and courts have applied the enhancement without proof that the defendant knew the depicted child’s age or prepubescent status.

When determining whether CSAM is sadistic, masochistic, violent, cruel, or sadistic in nature, federal judges look at what content is depicted in the child pornography.

A defendant’s knowledge of the nature of the content may be relevant in some cases (such as those involving the intent to possess material depicting a child’s sexual abuse), but generally, these disputes turn on whether the content depicted in the material is sadistic, masochistic, violent, cruel, or sadistic in nature.

For example, in a production case, the prosecution must prove the defendant’s intent to “produce” the material in question.

The application of Section 2G2.2(b)(4) does not require proof of the defendant’s intent to acquire the material in question; and, according to the Guidelines, “the offense level is enhanced even if only one image or video qualifies as sadistic, masochistic, or violent in nature, or depicts the child being subjected to cruelty, torture, pain, or the use of force, or being deprived of the use of a limb, or being subjected to sexual violence.”

Under Section 2G2.2(b)(4), the “sadistic, masochistic, or violent in nature” enhancement is applicable “if even one image or video depicts sexual abuse of a child that is sadistic, masochistic, or violent in nature, or depicts the child being subjected to cruelty, torture, pain, or the use of force, or being deprived of the use of a limb, or being subjected to sexual violence.”

• One image or video depicting sexual abuse of a child that is sadistic, masochistic, or violent in nature (or depictions of cruelty, torture, pain, use of force, deprivation of a limb, or sexual violence) can trigger the Section 2G2.2(b)(4) enhancement;
• One qualifying image or video of a prepubescent child, or a child under the age of twelve, can trigger the Section 2G2.2(b)(2) enhancement.

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

When Does Depicted Content Legally Count as Sadistic?

Under Sixth Circuit law, depictions of sexual penetration of a prepubescent child are presumed to involve inflictions of “pain, suffering, and force.” They are, as a result, presumed to be sadistic. The Sixth Circuit’s opinion in United States v. Cover addresses the “sadistic” aspect of the sentencing enhancement. Under the law established in Cover (and in subsequent Sixth Circuit opinion), sexual content depicted in CSAM is sadistic if:

• (i) it involves sexual penetration of a prepubescent child; or
• (ii) it contains depictions of violence or the infliction of physical or mental pain in relation to the sexual content.

Another key takeaway from Cover is that the sexual activity portrayed in CSAM is not automatically sadistic by virtue of the victim’s age.

In other words, sexual activity between an adult and a minor thirteen years of age or younger does not, by itself, establish that the material depicts a sadistic act.

Oral sex involving a thirteen-year-old does not, by itself, establish that the material depicts a sadistic act.

Under Cover, oral sex involving a minor is not presumed to be sadistic; the enhancement requires evidence that the depicted child was prepubescent and subjected to penetration, or evidence of violence or the infliction of physical or mental pain.

One notable exception under this analysis is when the CSAM in question is produced using “virtual reality” (V.R.) techniques. Under the law (according to the Supreme Court case Ashcroft v. Free Speech Coalition), V.R. images do not qualify as child sexual abuse material, and thus the child pornography statute does not apply.

In contrast, for depictions involving real children, the Sixth Circuit’s analysis in Cover provides a roadmap for determining the applicability of the sadistic-content enhancement based on:

• The presumed fact that depicted sexual penetration of prepubescent children is sadistic;
• The factual determination of whether the depicted child is prepubescent;
• The factual determination of whether there are depictions of violence or the inflicting of physical or mental pain.

As explained above, in many cases, the determination that a child depicted in CSAM is prepubescent will be made by the court itself (rather than an expert witness).

However, visible pain will also support a determination that the CSAM is sadistic, regardless of whether it involves the penetration of a prepubescent child.

In the 2015 Cover case, the defendant was appealing a sentencing enhancement based on his possession of CSAM that depicted an adult male engaging in oral-to-genital intercourse with a female who appeared to be eleven to thirteen years of age.

The record established that the defendant had no information about the girl’s identity, and the record established no visible evidence of pain, mental suffering, or violence.

• The trial court had presumed that oral sex with a twelve-year-old is inherently sadistic;
• The trial court’s finding was based on this presumed knowledge of the child’s prepubescent status;
• However, in order for that presumption to apply, the record had to establish that the depicted child was in fact prepubescent.
• Because the record lacked evidence that the child was prepubescent (or that the defendant knew that she was prepubescent), and because the record also lacked evidence of violence or the infliction of pain, the trial court erred in applying the sadistic-content enhancement.

Can the Age, Conduct, and Image Enhancements All Stack?

Various other Sentencing Guideline enhancements also apply in many cases involving CSAM. Among others:

• U.S.S.G. § 2G2.2(b)(6) is a conduct enhancement that adds two levels to the sentence 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.”
• The image-count enhancement is a conduct enhancement that can add up to five additional levels to a defendant’s sentence, depending on the number of qualifying images that are in the defendant’s possession.

Under U.S.S.G. § 2G2.2, a video counts as “75 images” for the purposes of calculating the image count.

U.S.S.G. § 2G2.2(b)(3) contains various other conduct enhancements. Conduct involving the distribution of child sexual abuse material can trigger a distribution enhancement under U.S.S.G. § 2G2.2(b)(3), starting at two levels and potentially going up from there.

Since 2016, U.S.S.G. § 2G2.2(b)(3)(F) also contains a provision that “The base offense level will not be increased because of distribution, if a defendant did not, without regard to how the material was distributed, intend to distribute the child pornography.”

Unlike many other types of criminal sentencing guidelines, the Sentencing Guidelines for federal CSAM offenses permit “double counting” of the various aggravators to the same extent that they are not explicitly forbidden, or that the nature of the aggravating features themselves do not require double counting.

In other words, a single file can trigger multiple Section 2G2.2 enhancements based on both its category (i.e., image, video, and/or production) and the other aggravating facts it depicts.

For example, a single video involving a prepubescent child being subjected to sexual abuse of a sadistic nature, and being stored in a digital folder on a computer, will trigger multiple Section 2G2.2(b) enhancements:

• Base offense level: 18;
• Section 2G2.2(b)(7) image-count enhancement: 5;
• Section 2G2.2(b)(2) victim-age enhancement: 2;
• Section 2G2.2(b)(3) conduct enhancement: 2;
• Section 2G2.2(b)(4) sadistic-content enhancement: 4;
• Section 2G2.2(b)(6) conduct enhancement: 2;

The total calculated offense level: 33.

Along with the other potential aggravating factors and criminal history calculation, this becomes the baseline that judges then consider when applying their discretion under 18 U.S.C. § 3553(a) and subsequent case law.

As explained above, the U.S. Sentencing Guidelines are advisory in nature, so a defendant’s counsel has numerous options available during the process.

As a result, the range that will be ultimately recommended by the probation officer (and considered by the judge) can and should depend heavily on the specific circumstances of each case.

The Sentencing Guidelines are advisory in nature; however, the defendant’s offense level will still begin with the Guidelines’ guidelines. The defendant’s counsel should work to argue that the sentencing Guidelines are too harsh to be applicable in each case, and, when possible, work to argue that the sentencing Guidelines’ presumptions do not apply.

How Can I Challenge a Sentencing Enhancement Before Sentencing?

In many cases, this is the goal of the defense. In this context, the following principles generally apply:

• The Government’s Burden: Generally, when a defendant or their counsel disputes the applicability of a Sentencing Guideline enhancement, the government bears the burden of proving the facts in question at sentencing. This is consistent with the criminal sentencing process in most other contexts.
• Preponderance of the Evidence: In federal sentencing, the standard for proving an enhancement is usually a “preponderance of the evidence.” This is the standard that applies to most civil cases, and it is more lenient than the “beyond a reasonable doubt” standard that applies in criminal trials.
• Evidence Reliability: When assessing the weight of evidence at sentencing, federal judges must ensure the evidence meets sufficient “indicia of reliability.” This is a mandate from the Sentencing Guidelines: “The judge should not rely on evidence that lacks sufficient indicia of reliability, as the evidence must be supported by a preponderance of the evidence.” (U.S.S.G. §6A1.3).

What Part of the Sentencing Process Is Involved?

The presentence report (PSR) is the starting point for Sentencing Guidelines calculations. The prosecutor and probation officer can include various “aggravators” in a defendant’s PSR to justify higher Sentencing Guidelines (and sentencing recommendations).

• Admissions: With very few exceptions, any facts contained in the defendant’s PSR that are not specifically objected to by the defendant’s counsel are treated as admitted for sentencing purposes.
• Timing of Objections: Under Federal Rule of Criminal Procedure 32(f)(1), a defendant must make any objections to the factual accuracy of the PSR within 14 days.
• Nature of Objections: Objections to the PSR can range from objections based on the factual accuracy of the record to objections challenging the relevance of specific facts (as well as objections to the application of a particular Guideline rule).
• Rule 32(i)(3)(B) Rulings: At sentencing, the judge must issue a written ruling (or a ruling on the record) whenever the defendant objects to the PSR’s accuracy or relevance.

What Are the Risks of Failing to Raise Sentencing Objections at Trial?

In most federal cases, failure to raise sentencing objections in a timely manner at trial results in waiving the ability to challenge these issues on appeal.

• Plain Error Review: While not absolutely precluding appellate review, failure to timely raise a Guideline objection at trial means that the appellate court will generally apply “plain error” review. The plain error standard is extremely deferential to the district court, and making a plain error claim is usually a far more difficult (and far more unlikely) avenue for success.
• De Novo Review: If the defendant preserves their objections to a Sentencing Guideline, then the appellate court will likely apply “de novo” review to determine whether the judge made a legal error regarding the defendant’s sentencings. Unlike plain error review, de novo review does not defer to the district court, and the appellate court will look at the case anew, applying the same standard that the judge should have used during sentencing.

Talk to Spodek Law Group

Every case turns on its own facts, and general information is no substitute for advice about yours. Todd Spodek, managing partner of Spodek Law Group, and the firm's attorneys defend federal criminal and white collar matters nationwide. Reach the firm at 212-300-5196.