In United States v. Cubero the Defendant appealed from his 151 month sentence and life-term of supervised release after pleading guilty to one count of distribution of child pornography and two count of possession of child pornography in violation of 18 U.S.C. 2252(a)(4)(B). For various reasons he argued that his sentenced was procedurally and substantively unreasonable. His procedural challenges were anchored to a double counting argument that he received a two level increase under the sentencing guideline provision U.S.S.G. 2G2.2(b)(3)(F) for the distribution of child pornography, in that both the base offense level and the section 2G1.2(b)(3)(F) cover the act of distribution. The court of appeals rejected the argument by finding that the base offense level covers multiple possible violations of §2252(a)(2) including knowing distribution, knowing receipt, and knowing reproduction, and the guideline addressed the range of harms associated with child pornography distribution through various offense level increases and decreases.
He argued he was entitled to a two level decrease under USSG § 2G2.2(b)(1), which provides for a two-level decrease if the defendant’s conduct was limited to receipt or solicitation of child pornography and the defendant did not intend to traffic in or distribute the material. Unfortunately, the argument failed because the defendant used a peer to peer file sharing network to obtain hundreds of images and he elected to make them available to others.
The court rejected the Defendant’s next procedural challenges: the district court treated the federal sentencing guidelines range as presumptively reasonable; failed to properly consider non-guideline § 3553(a) factors; failed to properly consider the Defendant’s argument for variance, and failed to adequately explain its sentence. It found the sentencing court heard all the factual and legal arguments in favor of a variance but was “not convinced that based upon the images, [it] should go below the guidelines”, while stating that it would not “sentence below the guidelines in the exercise of its discretion.” The district court gave sufficient reasons for its decision including the high volume of child pornographic images, the type and content which the judge found to be “egregious” “pretty tough” and “almost too embarrassing to mention,” titles that were “horrific, images involving toddlers being raped,” the number of images the defendant saved, and the belief that other cases of downward departure sentences may have been treated with too much leniency. The record showed the sentencing judge was fully aware she could vary downward below the guidelines yet it declined to do so given the facts of the case.
The court of appeals also rejected a substantive reasonableness argument. The court pointed to the hundreds of images of child pornography depicting infants, toddlers, pre-pubescent and pre-teen girls and boys being molested, raped and force to participate in sadistic acts and bestiality as support for a finding that the images were egregious and found the 151 sentence was “necessary to comply with the statutory sentencing factors.”
The Defendant argued that a Report by the United States Sentencing Commission entitled “Special Report to Congress on Federal Child Pornography Offenses,” issued after the defendant’s sentencing, gave support to his criminal defense attorney’s argument that the guideline enhancements for the non-production child pornography offenses were outdated and it questioned the appropriateness of the current guideline scheme for peer to peer file sharing. But the appeals court found the Report was only a recommendation that Congress enact legislation providing the Commission with the authority to amend the guidelines. The report itself did not change the guidelines.