A blog of the Philadelphia Bar Association’s Criminal Justice Section

By Burt Rose

In the case of United States versus David Fulford, 2011 WL 5517073, Docket number 10–12916, the United States Court of Appeals for the 11th Circuit reviewed a sentence imposed in United States District Court in Alabama wherein the defendant had been convicted of distribution of child photography. The issue in the case was whether a five level enhancement under the sentencing guidelines for distribution of child pornography to a minor was warranted where the individual to whom the child photography was distributed was in fact not a minor but rather was a person unknown to law enforcement. The district court had ruled that the actual age of the recipient did not matter as long as the accused believed that said person was really a minor. The Court of Appeals disagreed because the definition of minor in the application note to sentencing guidelines section 2G2.2 reveals that “it is more than just the thought that counts”.

At the sentencing, the government admitted that it could not identify the persons who had received child pornography from the defendant. None of the recipients were law enforcement officers running a sting. It turned out that the recipients appeared to be adult males posing as minor girls. The Court of Appeals observed that it would not read into the definition of a minor under the sentencing guidelines that this provision applies to anyone the defendant believes is under the age of 18. Under sentencing guidelines section 2G2.2(b)(3)(C), the definition of a “minor” specifically includes fictitious minors created by law enforcement in limited circumstances. However, in this case, there was no law enforcement officer posing as a minor nor was there a fictitious minor created by a police investigator. Therefore because the government cannot prove that the recipient was actually under the age of 18 years at the time of distribution, the defendant’s belief that the recipient was a minor at the time he sent the child pornography was not enough to justify the enhancement.

Thus, the defendant’s sentence was vacated and the matter was remanded for further proceedings.

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