Time Gap No Bar to Child Porn Sentence Increase

Although defendant contends his only documented incident of distributing child pornography occurred more than two years prior to his offense of possession, the 4^th Circuit upholds a distribution sentencing enhancement under USSG § 1B1.3 and affirms defendant’s 78-month sentence, followed by 15 years of supervised release.

Despite the limited scope of conduct for which defendant was convicted, under § 3B1.3(a)(2), he may nonetheless be sentenced more broadly for relevant conduct – i.e., the conduct of other offenses insofar as they were part of the same course of conduct as the offense of conviction.

Defendant’s challenge centers on the factual analysis the district court conducted in applying the relevant conduct guideline. The court’s application of § 1B1.3 depended on an evaluation and weighing of the factual details, even though the details themselves may have been undisputed. We review the court’s decision for clear error.

The concept of “same course of conduct” requires only that the defendant be engaged in an identifiable pattern of certain criminal activity. We evaluate the similarity of the offenses, their regularity and the time interval between them.

The district court acknowledged that the two and one-half year gap between the upload of child pornography online and defendant’s offense of arrest was “significant.” But the court had other evidence to support its conclusion that defendant’s distribution of child pornography was part of the same course of conduct as his July 2011 possession of child pornography.

Defendant admitted on the day of his arrest that he had possessed and distributed child pornography during the last 10 years, and that he had distributed child pornography to various Yahoo Groups on at least six occasions, and the CyberTipLine Report documents him uploading child pornography to yet a different website on an additional occasion. During conversations from late 2010 to early 2011, defendant actively solicited images of prepubescent children with whom he wished to have sex, constituting a further extension of his course of conduct. The court found the distribution and possession of child pornography were the “same sort of conduct continuing over the entire period.” We conclude the court’s factual finding was supported by the record and therefore was not clearly erroneous.

Judgment affirmed.

U.S. v. McVey (Niemeyer) No. 13-4285, April 23, 2014; USDC at Parkersburg, W.Va. (Chambers) Jonathan D. Byrne, FPD, for appellant; Jennifer L. Rada, AUSA, for appellee. VLW 014-2-077, 16 pp.