11th Circuit Hears Sentence Enhancement Issue in Child Porn Case

In United States v. Dominguez, the defendant pleaded guilty to distribution and possession of child pornography in federal court in Florida. At issue on appeal was a specific sentencing enhancement that was applied to the defendant which resulted in a significant increase in his sentence.

Federal Sentencing Enhancement at Issue

In child pornography cases, the federal sentencing guidelines provide for a number of enhancements to a defendant’s sentence if the court finds certain aggravating factors. One of these is a 5-level enhancement if it is found that the defendant “engaged in a pattern of activity involving the sexual abuse or exploitation of a minor.”

In this case, the district court found that the enhancement applied based on Instagram messages that the defendant sent to a minor requesting nude photos. These messages, between him and a nine-year-old girl, were sexually explicit and also included the defendant sending her a photo of his penis. Since the defendant had a prior conviction for similar conduct, the government contended that these two incidents constituted the “pattern of activity” required under the enhancement (the sentencing guidelines state that a “pattern” means two or more instances of the sexual abuse or exploitation of a minor).

As a result of this enhancement, the defendant was facing a sentencing guideline range of 360 months to life in prison. The defendant appealed, arguing that the enhancement requires actual or attempted physical contact with a minor.

Whether Interpersonal Contact with a Minor is Required

The Court noted that this issue had previously been addressed by two other circuit courts with each court reaching a different result. In a case from 2011, the 7th Circuit found that, in order for the enhancement to apply, there must have been interpersonal contact between the defendant and the minor. However, the 4th Circuit held in 2012 that no interpersonal contact was required.

The Court stated that it was siding with the ruling of the 4th Circuit and held that the enhancement does not require actual or attempted physical contact between the defendant and a minor. It pointed out that in other statutes the legislature has stated that the term “sexual activity” encompasses the production of child pornography – which can be accomplished without contact with the child since it can include children performing sexual acts on themselves. Thus, the Court found that the same can hold true here.

Lastly, the Court found that since it was apparent that the defendant engaged in this conversation with the girl for the purpose of sexual gratification, it made sense to find that this constituted the sexual exploitation of a minor.

Remand of the Case to the District Court

Nevertheless, the Court held that it must still remand the case back to the district court as it was also required to find that the defendant engaged in conduct for which a “person can be charged with a criminal offense.” The district court never made this finding, stating only that the conduct was sufficient to warrant the enhancement.

As a result, the Court ultimately vacated the defendant’s sentence and remanded the case back to the district court with instructions to hear argument from the parties on this issue and then resentence the defendant.

On remand, assuming that it is found that the defendant’s conduct did constitute a criminal offense, it is very likely that his original sentence will be reinstated.