Duplicate Digital Images and Sentencing

This post deals with an issue Timothy McNerney raised in appealing his sentence of 120 months incarceration plus 10 years of supervised release for receiving and distributing child pornography in violation of 18 U.S. Code § 2252(a)(2) and possessing child pornography in violation of 18 U.S. Code § 2252A(a)(5)(B). U.S. v. McNerney, __ F.3d __, 2011 WL 691178 (U.S. Court of Appeals for the 6^th Circuit 2011).

This is all I know about how the case arose:

On February 20, 2007, federal agents obtained a valid search warrant to search Timothy McNerney's house based on a federal task force agent's determination, through an internet search, that [McNerney] was sharing 166 files depicting child pornography online via a peer-to-peer file-sharing program. Pursuant to this valid search warrant, federal agents searched [McNerney’s] house, and seized [his] computer.

A forensic analysis of [McNerney’s] computer revealed that the file-sharing program was installed on [his] computer, and that numerous images of child pornography were located in the shared folder, allowing other users of the file-sharing program to access them. The agents also found that [McNerney] had backed up his files on a second hard drive, creating an identical second copy of all of the data contained on his computer, including the images of child pornography.

U.S. v. McNerney, supra.

On December 10, 2008, a federal grand jury indicted McNerney for receiving and distributing child pornography and possessing child pornography in violation of the statutes cited above. U.S. v. McNerney, supra. On April 22, 2009, he pled guilty to both counts of the indictment, and on August 13, 2009, the district court held a sentencing hearing, after which it imposed the sentence noted above. U.S. v. McNerney, supra.

The court based McNerney’s sentence on the application of the Federal Sentencing Guidelines, which, as Wikipedia notes, are “rules that set out a uniform sentencing policy for individuals and organizations convicted of felonies and serious misdemeanors in the United States federal courts system. As Wikipedia explains, sentencing under the Guidelines is based primarily on two factors:

1. the conduct associated with the offense (the offense conduct, which produces the offense level)
2. the defendant's criminal history (the criminal history category).

If you want to know more about that process, check out the “general application principles” you can find here. Section 1B1.3, which you can find here, sets out the generic circumstances a court considers in arriving at offense conduct. Section 2G2.2, which you can find here, sets out the circumstances that are specific to offenses involving the sexual exploitation of minors, which includes child pornography crimes. And if you’re interested in the process used to arrive at a defendant’s criminal history, check out § 4A.1.1 (and succeeding sections) of the Sentencing Guidelines, which you can find here.

As Wikipedia explains, once a court has calculated the offense conduct and the defendant’s criminal history, it uses the Sentencing Table, which you can find here, to determine the base sentencing range within which a court can sentence a defendant.

For example, for a defendant convicted on an offense with a total offense level of 22 and a criminal history category of I, the Guidelines recommend a sentence of 41–51 months, considering the year of the offense to be the same as the year of the guidelines. If, however, a person with an extensive criminal history (Category VI) committed the same offense in the same manner in the same modern timeline . . ., the Guidelines would recommend a sentence of 84–105 months.

A court can also factor in “adjustments” that reduce (e.g., providing “substantial assistance” to authorities) or increase (e.g., “vulnerable victims”) the sentence to be imposed on a specific offender.

This is how the district court judge who was assigned McNerney’s case went about sentencing him:

[The court] calculated [McNerney’s] total offense level at 30, and [his] criminal history category at I, producing an advisory sentence range of 97 to 121 months. In calculating [McNerney’s] offense level, the district court began with a base offense level of 22, which both parties agreed was correct. The district court proceeded to add the following enhancements: a two level enhancement for images of prepubescent minors pursuant to U.S.S.G. § 2G2.2(ii); a two level enhancement for transferring materials over the internet pursuant to U.S.S.G. § 2G2.2(b)(3)(F); a two level enhancement for using a computer in the crime pursuant to U.S.S.G. § 2G2.2(b)(6); and a five level enhancement for having more than 600 images pursuant to U.S.S.G. § 2G2.2(b)(7), producing a total offense level of 33. The district court adjusted [his] offense level for acceptance of responsibility (i.e., pleading guilty], placing [his] final offense level at 30.

U.S. v. McNerney, supra.

In challenging his sentence on appeal, McNerney argued that the district court judge erred in imposing the five level enhancement for having more than 600 images. U.S. v. McNerney, supra. Under Sentencing Guideline § 2G2.2(b)(7), a defendant’s sentence is to be enhanced by 2 levels if the crime involved at least 10 but less than 150 images; enhanced by three levels if it involved at least 150 but less than 300 images; by four levels if it involved at least 300 but less than 600 images; and by 5 levels if it involved 600 or more images.

Here is what the district court judge said about how he arrived at that enhancement:

`[T]here's a dispute about the number of images. The Probation Department has recommended an additional five levels based on the finding that there are more than 600 images, specifically 766. [McNerney] has argued that there's double counting because there are multiple copies of the same image and, therefore, those images should be counted only once in reaching the total. . . . [He] had two hard drives and many of the images are found on both hard drive. . .

[G]iven that as the government pointed out the computer automatically creates a mirror image of the first hard drive on the second hard drive, and so if hard drive number one is damaged or erased all the images would still exist on the backup hard drive in pristine form, and in my view then we have multiple images and it's not double counting because we've got two separate hard drives and this means if one were damaged, [McNerney] would still have them on the other hard drive.

That's the only reason to have them on two hard drives, so I don't believe it's unfair or inappropriate to count, you know, we have image A on hard drive one and the same image is on hard drive two, we have two separate images and they could both be used and they are there in case one hard drive crashes. So I don't believe we have double counting, and given that, there are more than 600 images in total and so the plus five applies.’

U.S. v. McNerney, supra.

McNerney objected to the enhancement at the time, and raised the issue again in his appeal. U.S. v. McNerney, supra. On appeal, he argued that “only unique digital images, not duplicate digital images, should be counted in computing an enhancement under this provision of the Sentencing Guidelines.” U.S. v. McNerney, supra. The 6^th Circuit began its analysis of his argument by noting that this was an issue of first impression for this court and that “[t]here is also a dearth of case law on this question” from other federal courts of appeal. U.S. v. McNerney, supra.

The court then reviewed the history of the sentencing provisions that apply to child pornography offenses, noting that they reflect Congress’ continuing concerns about the victimization of children and a resulting effort to “`prevent the exploitation of children through pornography.’” U.S. v. McNerney, supra (quoting Connection Distrib. Co. v. Holder, 557 F.3d 321 (6^th Cir. 2009)). The 6^th Circuit also noted that “some commentators have questioned the wisdom of the congressionally-directed Child Pornography Sentencing Guidelines because they were the product of Congressional mandate rather than the commission’s . . .systematic empirical approach.” U.S. v. McNerney, supra. But it ultimately concluded that notwithstanding the “debate regarding the wisdom of congressionally-mandated enhancements”, it “is unquestionably Congress’ constitutional prerogative to issue sentencing directive such as the sentencing enhancement for quantity of images at issue in this case.” U.S. v. McNerney, supra.

The 6^th Circuit therefore proceeded to analyze how § 2G2.2(b)(7) should be applied to McNerney’s case. It began by reiterating that (i) “congressional directives regarding sentencing for child pornography have consistently increased penalties” and (ii) “although Congress has explicitly expressed its desire to enhance punishments for child pornography offenses, Congress has not differentiated between digital images and hard copy images for the purposes of § 2G2.2(b)(7) image enumeration.” U.S. v. McNerney, supra.

The 6^th Circuit noted that neither the “congressional directive” implemented by § 2G2.2(b)(7) nor the “Application Note” for the guideline “differentiates between digital images and hard copy images.” U.S. v. McNerney, supra. Application note 4(A), for § 2G2.2(b)(7) defines “images” as “any visual depiction, as defined in 18 U.S. Code § 2256(5), that constitutes child pornography, as defined in 18 U.S. Code § 2256(8).” U.S. v. McNerney, supra. (Section 2256(5) defines “visual image” as including “undeveloped film and videotape, data stored on computer disk or by electronic means which is capable of conversion into a visual image, and data which is capable of conversion into a visual image that has been transmitted by any means, whether or not stored in a permanent format[.]”) The court noted that since the Application Note “refers only to `any visual depiction’”, this “suggests that duplicate visual depictions, digital or otherwise, should be counted separately for purposes of this enhancement.” U.S. v. McNerney, supra.

It then pointed out that prior versions of the child pornography sentencing guidelines “similarly treated digital images and hard copy equivalently, citing the Sentencing Commission’s 2000 amendments to the image enhancement, which “stated that a `computer file qualifies as an item for purposes of the enhancement,’ thus providing for identical treatment of digital images and hard copy images.” U.S. v. McNerney, supra.

McNerney argued that duplicate hard copy images should be distinguished from duplicate digital images because “`the rationale underlying the increase in levels based upon the number of images is obvious: each picture represents a separate victimization of those pictured.’” U.S. v. McNerney, supra. He maintained that “duplicate digital images . . . are not ‘multiple victimizations.’” U.S. v. McNerney, supra. According to McNerney, “`there are practical reasons why [duplicate] hard copies could be treated [as multiple images]”, one of which is that “`making [duplicate] hard copies requires more than a minimal amount of effort, and having [duplicate] hard copies makes it possible to potentially distribute them.’” U.S. v. McNerney, supra.

The 6^th Circuit noted that his argument implied that “digital images and hard copy images are disseminated by dissimilar methods of distribution”, since McNerney contended that “dissemination of hard copy images requires duplication”, which makes it reasonable for a court to count duplicate hard copy images – but not duplicate digital images -- separately in calculating a sentence. U.S. v. McNerney, supra.

The 6^th Circuit rejected his argument for two reasons, the first of which was empirical:

Digital distribution of child pornography is facilitated by file-sharing programs that allow users to access other users' computers to download shared digital images. Once an individual uploads a single digital image onto the file-sharing platform, an infinite number of users can access that digital image. Thus, possessing a duplicate digital image does not affect the quantity of child pornography available for digital distribution.

U.S. v. McNerney, supra.

The court also noted that § 2G2.2(b)(7) applies to “all” of the federal child pornography crimes, including possessing, soliciting or advertising child pornography. U.S. v. McNerney, supra. Since § 2G2.2(b)(7) applies “equally to distribution and possession of child pornography”, its “applicability is not dependent on a defendant’s capacity to distribute child pornography”, which means that the “rationale for differentiating between duplicate hard copy images an duplicate digital images base don differences in distribution methods” was “not persuasive.” U.S. v. McNerney, supra.

The 6^th Circuit therefore held that “duplicate digital images, like duplicate hard copy images, should be counted separately for purposes of calculating a sentence enhancement under § 2G2.2(b)(7)” and affirmed McNerney’s sentence. U.S. v. McNerney, supra.