Defendant’s conduct in a foreign country can be used to enhance the sentence

In this appeal Anthony Spence was charged with knowing transportation of child pornography in violation of 18 U.S.C. 2252A(a)(1) and knowing possession of child pornography in violation of 18 U.S.C. 2252A(a)(5)(B). He was found guilty after trial. In calculating his federal sentencing guidelines range the probation officer recommended an increase for a number of factors. The factor at issue here was a two-level enhancement for distribution which Spence stated took place while he was in Jamaica. In this appeal he argues that his distribution of the videos while in Jamaica should not have affected his guidelines calculation. He argued that by including his out of country conduct in the calculation of his offense level the district court violated the principle that legislation of Congress should apply only within the United States unless a contrary intent appears. Spence was relying upon a canon of statutory construction known as the presumption against the application of congressional statutes to conduct occurring in the territory of a foreign sovereign. He argued that the distribution of videos occurring solely in Jamaica should not have been considered by the district court.

As an issue of first impression, the court of appeals saw the issue as whether the presumption against the extraterritorial application of congressional legislation should be extended to apply also to preclude a sentencing judge from considering extraterritorial conduct which would otherwise be properly considered as relevant conduct.

The court of appeals rejected the defendant’s argument and sided with several circuits which addressed this issue and held that the presumption against the extraterritorial application of congressional legislation does not apply in the sentencing context of a court’s consideration of relevant conduct that occurred outside the United States.

The court found that the conduct underlying the offense of possession and transportation of child pornography for which Spence was convicted and sentenced occurred in the United States. He was not convicted of conduct that occurred outside the United States nor was he sentenced for that conduct. The fact that relevant conduct which occurred outside the United States was considered in assessing the gravity of his domestic crime does not mean that he was sentenced for that extraterritorial conduct.

Second, the court found no language in the federal sentencing guidelines provisions which limits consideration of relevant conduct to conduct that occurred in the United States. Third, the court found there is no geographic limit on relevant conduct that ta sentencing court may consider.

The court rejected the defendant’s concern that the court would be considering a foreign crime in his sentencing. This was not a foreign conviction; rather the court was concerned with conduct which has already been determined to be child pornography and in violation of the federal criminal law. Though the guidelines provide that foreign convictions not be counted, foreign convictions and sentences can be considered under the upward departure provision. This is inconsistent with the defendant’s position that the presumption against extraterritorial application of congressional legislation should be extended to preclude a sentencing judge from considering extraterritorial conduct in the sentencing process.