Today, the Sixth Circuit considered what constitutes "relevant conduct" under Guideline 1B1.3(a) in a child pornography case. In United States v. Hodge, the Court addressed the two-level reduction under Guideline 2G2.2(b)(1), which applies when "the defendant's conduct was limited to the receipt or solicitation of material involving the sexual exploitation of a minor" with no intent "to traffic in, or distribute, such material." The Hodge court affirmed the sentence, holding the reduction did not apply because of other relevant conduct that suggested distribution.
The defendant in Hodge was secretly videotaping his minor step-daughter while she was naked. When the step-daughter uncovered the camera and the police arrived with a search warrant, they uncovered child pornography on Mr. Hodge's computer. That child pornography, which was exclusively made up of images downloaded from the Internet, served as the basis for the two counts in Mr. Hodge's case.
Mr. Hodge argued the video taping of his step-daughter was not a part of the indicted conduct and did not meet the Guideline definition of relevant conduct. Specifically, he argued under United States v. Fowler, 216 F.3d 459, 460-61 (5th Cir. 2000), receipt requires downloading during a discrete moment in time. The district court found Mr. Hodge's possession of pornography continued through the entire period he was both downloading child pornography and taping his step-daughter.
In analyzing the issue, the Hodge Court surveyed the case law on the definition of "relevant" under Guideline 1B1.3(a)(2) and relied heavily on relevancy requiring the conduct to be a criminal offense - even if it is never prosecuted. The Hodge Court also noted that relevant conduct "must bear some logical relationship to the offense of conviction." While the videos were not lascivious, they did constitute an attempted sexual exploitation of a minor - a crime.
Further, Hodge analyzed the "trailing clause" of 1B1.3(a)(1), which requires the relevant conduct to occur "during the commission of the offense of conviction." The Court explained Guideline 1B1.3 applies to "groupable" offenses and that the district court should consider other acts that were a part of the same course of conduct, scheme, or plan. The decision also identified some ambiguity as to whether the trailing clause applied to both the (a)(1) and (a)(2) sections.
Ultimately, the Hodge Court held the enhancement was properly applied, because the video taping occurred "during the commission of the offense of conviction" and was part of a common purpose and scheme.