Opinion in U.S. v. Groenendal, No. 07–2430 (6th Cir. Feb. 26, 2009) (panel of Judges Gibbons, McKeague, and Shadur, who is a district judge in Northern Illinois), helpful on issue of application of Section 3B1.2—Mitigating Role—in child-porn cases.
Basically, the defendant uploaded three pictures in the space of five minutes to join a porn/child-porn chat group on the Internet. He deleted his account within weeks of joining and was not questioned by law enforcement until almost two years later. He confessed his behavior to those close to him and sought professional help for his pornography addiction, spending thousands of dollars on group and individual counseling. Four and a half years after deleting his account, the defendant was charged with possessing child pornography. Because of some advantageous application of the law as it was at the time of his offense, and a downward departure, he received a sentence of 42 months.
The panel rejected the defendant’s argument that the old cross-reference to the trafficking guideline should not apply to him, finding that the uploading of pictures constituted trafficking. He "shipped" the pictures over the Internet. The panel also rejected the defendant’s objection to the enhancement for sadistic/masochistic depictions. (I won’t go into details, but the standard is low. As a note, the picture was not part of the record, but the defendant did not dispute the description of the conduct—the parties stipulated that the picture was as described—so the court ruled on the issue based on the description.)
The key issue is that of the district court’s decision not to apply the decrease in offense level for mitigating role under Section 3B1.2. The panel held that the reduction can apply: "In other words, [the defendant] cannot be guilty of trafficking for purposes of sentencing enhancements and guilty of only possession for purposes of sentencing reductions." The fact that the defendant was the only charged participant did not bar application of the reduction. The panel reasoned that "[t]he government cannot have it both ways and view [the defendant’s] conviction as trafficking for the applicability of sentencing enhancements but as possession for the applicability of reductions." The district court’s language was ambiguous concerning whether the district court felt it could apply the enhancement in the defendant’s circumstances, and it had erred because once it found the defendant had participated in trafficking for sentencing purposes it had to consider the reduction.
The panel remanded the case for the district court to consider applying the reduction. The panel seems to lean toward application, citing the compelling facts of the case.