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Dual Enhancement Upheld for Child Porn Sentence

A U.S. Navy information systems technician who was convicted for various crimes related to his collection of child pornography and plot with an undercover agent to kidnap, rape and murder a very young child, cannot overturn his 420-month prison sentence by challenging the district court’s enhancements under the federal sentencing guidelines.

On appeal, defendant contends the district court erred in applying two five-level enhancements, the first for engaging in a pattern of sexual abuse or exploitation of a  minor, and the second for distribution of child pornography for receipt of a thing of value. He also argues that his sentence is substantively unreasonable.

The district court concluded defendant engaged in three instances of sexual abuse or exploitation of a minor: arranging a meeting with a minor in Chesapeake, Va.; communicating online with a minor in Virginia Beach; and attempting to entice the undercover agent to travel to engage in illicit sexual activity.

Section 2G2.2(b)(5) singles out for more severe punishment those defendants who are more dangerous because they have been involved first hand in the exploitation of children. The application of this enhancement to fictitious children indicates a focus on the danger a defendant would pose if given the opportunity to carry out his plans, rather than on whether a defendant actually has exposed a child to direct harm. Whether a defendant has identified a specific victim ahead of the crime is not dispositive. Here, defendant’s failure to identify a specific child at the outset does not diminish his danger to children or his first-hand involvement in the exploitation of a minor. We hold that for purposes of § 2G2.2, the term “minor” may include an unidentified individual, provided that evidence shows the individual would be under 18 years of age.

The second enhancement under USSG § 2G2.2(b)(3)(B) also applies because defendant obtained and distributed child pornography through a P2P network. Our sister circuits have reached different conclusions on whether the five-level enhancement applies for sharing files through such a network. Because the district court followed the reasoning of the 8th Circuit regarding an issue on which we have not ruled directly, it did not commit plain error and we decline to reverse its application of the enhancement.

Finally, the sentence was not substantively unreasonable. The district court properly weighed and considered all relevant factors, noting potential mitigating factors. The court ultimately determined a lengthy sentence was necessary because of the seriousness of defendant’s offenses. Defendant’s possession of particularly violent pornographic materials of very young children combined with the direct threat he posed – as made apparent by the enticement conduct – justifies the district court’s within-range sentence.

Sentence affirmed.

U.S. v. Strieper (Floyd) No. 10-5060, Jan. 23, 2012; USDC at Norfolk, Va.; Frances H. Pratt, FPD; Melissa E. O’Boyle, AUSA. VLW 012-2-017, 11 pp.

VLW 012-2-017

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