Unreasonable guideline-How do I get probation…

By Brock Benjamin
Founding Attorney

2G2.2– Guideline for Possession of a Visual Depiction involving the Sexual Exploitation of a Minor 18 U.S.C. § 2252

That is a fancy way of saying Possession of Child Porn. I had a sentencing recently that I think is a perfect example of how to explain the guidelines. Suffice to say, they don’t make sense.

Keep in mind the general idea under the guidelines is that while they have been “advisory” since Booker in 2005. That doesn’t mean that 1) all judges treat them that way or 2) that even when advisory they make sense. The biggest example of that is that the guidelines say they apply if higher or the maximum sentence applies if the guidelines are higher.

If someone pleas guilty to the above Possession of Child Porn the sentencing range is 0-20 years in prison. Under 2G2.2 the guidelines begin with a base offense level of 18 (27-33). There are many Specific Offense Characteristics (SOCs) that can be applied to that guideline. The first is Distribution for +2, the second that applies is the use of a computer +2, and third the number of images are regularly applied SOCs.

Let’s start with “the use of a computer”. The question in my mind when I go through this is “how does one obtain porn” anymore without a computer. When this was created in 1990’s it was probably a special characteristic, not now. Most judges are semi receptive to an objection on this characteristic. This is a +2 enhancement.

The other enhancement that will usually apply is the number of images. This one is arbitrary, especially in today’s world where one can open a zip file and find 1 image or 600 images.
(A) at least 10 images, but fewer than 150, increase by 2 levels;
(B) at least 150 images, but fewer than 300, increase by 3 levels;
(C) at least 300 images, but fewer than 600, increase by 4 levels; and
(D) 600 or more images, increase by 5 levels.

The same insane rationale applies to videos. Under the application notes where images are discussed the following is listed-Each video, video-clip, movie, or similar visual depiction shall be considered to have 75 images. If the length of the visual depiction is substantially more than 5 minutes, an upward departure may be warranted.

All of the above begs the question, how does one get to a low end of the 2G2.2 Guideline if the lowest a person can go is 15. As you can see by consulting the sentencing table, offense level 15, criminal history category I is a recommended sentence of 18 to 24 months. A normal case has a much higher recommended guideline sentence. Luckily some judges disagree with the guidelines.

About the Author
Brock Benjamin is board-certified in Criminal Law by the Texas Board of Legal Specialization.  His practice is primarily state and federal criminal law and appeals.Brock 

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