U.S v. Kiefer
United States Court of Appeals for the Ninth Circuit
760 F.3d 926
Decided on: July 24, 2014
An Enhancement Element Contained Within The Statute Is Not Considered Double-Counting
Blog By: Stephen N. Preziosi Esq., Criminal Appeals Attorney
Issue: Whether the District Court erred when it applied a two-level enhancement for use of a computer under §2G2.2(b)(6) where Defendant was convicted under § 2252(a)(2), which criminalizes the knowing receipt of child pornography using any means or facility of interstate or foreign commerce and by any means including a computer.
Summary: Defendant Mark Robert Kiefer pleaded guilty to one count of receiving child pornography in violation of 18 U.S.C.§ 2552. He appealed to the Ninth Circuit Court of Appeals arguing that the District Court’s application of a two-level enhancement for the use of a computer under §2G2.2(b)(6) resulted in impermissible double counting.
Defendant admitted that the statute prohibits the receipt of child pornography through means other than the use of a computer but contends that those other means are not subject to an enhancement under § 2G2.2(b)(6). The Ninth Circuit concluded that a person can traffic in child pornography without using a computer much like one could commit a robbery without the use of a gun and concluded that the application of § 2G2.2(b)(6) did not result in impermissible double counting.
Holding: The Ninth Circuit Court of Appeals held that the District Court properly applied §2G2.2 as an enhancement and it did not result in impermissible double counting because the increase in a Defendant’s sentence for the use of a computer accounts for harm that is not fully reflected in the base offense level.
The U.S.S.G §2G2.2(b)(6) enhancement for using a computer aims at punishing a distinct harm beyond the mere transmission of child pornography.
Facts: Defendant Mark Robert Kiefer was indicted and, pursuant to a plea agreement, pleaded guilty to one count of receiving child pornography in violation of 18 U.S.C.§ 2552 and was sentenced to 63 months’ imprisonment. Defendant appealed to the Ninth Circuit Court of Appeals arguing that the District Court’s application of a two-level enhancement for the use of a computer under §2G2.2(b)(6) resulted in impermissible double counting
Defendant admitted that the statute prohibits the receipt of child pornography through means other than the use of a computer but contends that those other means are not subject to an enhancement under § 2G2.2(b)(6). The Ninth Circuit concluded that the use of a computer is not essential to the act of distributing child pornography. A person can traffic in child pornography without using a computer much like one could commit a robbery without the use of a gun.
Therefore, the application of § 2G2.2(b)(6) does not result in impermissible double counting because the increase in a Defendant’s sentence for use of a computer accounts for harm that is not fully reflected in the base offense level.
Legal Analysis: The Ninth Circuit Court of Appeals relied on other Sister Appellate Court’s in holding that the application of the two-level enhancement for the use of a computer under §2G2.2(b)(6) does not result in double counting.
In this case, Defendant argues that the two-level enhancement for the use of a computer under §2G2.2(b)(6) results in impermissible double counting. He points out that the statute under which he was convicted, § 2252(a)(2), which criminalizes the knowing receipt of child pornography using any means or facility of interstate or foreign commerce or that has been mailed, or has been shipped or transported in or affecting interstate or foreign commerce, or which contains materials which have been mailed or so shipped or transported by any means including a computer. 18 U.S.C. §2252(a)(2).
Defendant admits that the statute prohibits the receipt of child pornography through means other than the use of a computer but contends that those other means are not subject to an enhancement under §2G2.2(b)(6). The Ninth Circuit held that this argument has been rejected by other sister Circuit Courts. As the Second Circuit observed in United States v. Reingold, 731 F.3d 204, 226 2d.Cir.2013, the use of a computer is not essential to the act of distributing child pornography. A person can traffic in child pornography without using a computer much like one could commit a robbery without the use of a gun.
The Ninth Circuit found the reasoning of the Second Circuit persuasive:
‘The digital revolution, which may be responsible for more child pornography crimes’ being committed by computer, has aggravated rather than mitigated the harms associated with such crime. By making it easier to retrieve and distribute child pornography, computers have expanded the market for child pornography, which in turn fuels a greater demand for a product that can only be produced by abusing and exploiting children.
Moreover, once child pornography is circulated by computer, it becomes almost impossible to remove or destroy. In such circumstances, it was hardly unreasonable, much less double counting, for the Sentencing Commission to conclude that the base offence level applicable to all distributors of child pornography—even those who share items non-electronically— should be enhanced for persons who commit the crime by using a computer.’
The Ninth Circuit held that every other Circuit Court to have addressed this question has reached the same conclusion. The statutory language ‘including by computer’ does not require computer use to violate the statute: using a computer is just one example of a manner in which child pornography ‘by any means’ affecting interstate commerce. United States v. Lewis, 605 F.3d 395, 403 6th Cir.2010.
The fact that the statute articulates computer use as one means of transporting the proscribed depictions does not mean that use of a computer is a required element of the crime.
The Ninth Circuit held that the U.S.S.G §2G2.2(b)(6) enhancement for using a computer aims at punishing a distinct harm beyond the mere transmission of child pornography, United States v. Tenuto, 593 F.3d 695, 698 7th Cir.2010. The Ninth Circuit held that in order to violate the statute, it was not necessary that Defendant use a computer. The Defendant could have carried it on a train or simply walked it across State lines. Therefore, the Ninth Circuit Court of Appeals held that the District Court properly applied this enhancement and affirmed the District Court’s judgment.