Federal Possession of Child Pornography

Under 18 U.S.C. § 2252(a)(4), the crime of Possession of Child Pornography is committed when a person knowingly possesses images or videos of a minor engaging in sexually explicit conduct.

Sexually Explicit Conduct

18 U.S.C. § 2256(2)(A) defines Sexually Explicit Conduct as:

  1. graphic sexual intercourse or lascivious simulated sexual intercourse where the genitals, breast, or pubic area of any person is exhibited;
  2. graphic or lascivious simulated bestiality, masturbation, or sadistic or masochistic abuse; or
  3. graphic or simulated lascivious exhibition of the genitals or pubic area of any person.

Penalties for Possession of Child Pornography

The maximum penalties for Possession of Child Pornography are determined by whether the defendant is charged with:

The minimum penalties for Possession of Child Pornography depend on the existence of the following aggravating factors:

  1. the nature of the images possessed (the age of the children depicted and whether they involved sadistic, masochistic, or violent acts).
  2. the number of images possessed.
  3. whether a computer was used.
  4. whether the defendant distributed child pornography.
  5. whether the defendant previously engaged in a “pattern of activity” involving the “sexual abuse or exploitation of a minor.”

Possession of Child Pornography involving a minor 12 or older

Under federal law, the crime of Possession of Child Pornography involving a minor 12 or older is a Class D felony, punishable by up to ten years in prison, lifetime supervised release, and $250,000 in fines.

Under the United States Sentencing Guidelines, a first time offender convicted of Possession of Child Pornography involving a minor 12 or older would be assigned a base offense level of 18, which carries a guideline range of 27-33 months of imprisonment before taking into account any mitigating or aggravating circumstances.

Addittionally, 18 U.S.C. § 3583(k) requires a judge to impose at least five years of supervised release following any term of imprisonment.

Possession of Child Pornography involving a Prepubescent Minor

Under federal law, the crime of Possession of Child Pornography involving a prepubescent minor or a minor who had not attained 12 years of age is a Class C felony, punishable by up to twenty years in prison, lifetime supervised release, and $250,000 in fines.

Under the United States Sentencing Guidelines, a first time offender convicted of Possession of Possession of Child Pornography involving a prepubescent minor or a minor who had not attained 12 years of age would be assigned a base offense level of 20, which carries a guideline range of 33-41 months of imprisonment before taking into account any mitigating or aggravating circumstances.

Addittionally, 18 U.S.C. § 3583(k) requires a judge to impose at least five years of supervised release following any term of imprisonment.

Defenses to Possession of Child Pornography

In addition to the pretrial defenses and trial defenses that can be raised in any criminal case, common defenses to the crime of Possession of Child Pornography include:

Good Faith Destruction or Reporting

It is a defense to possession of three images or less of child pornography if the defendant either made a good faith effort to delete the images or reported the images to law enforcement. [2]

Substantial Assistance

While not technically a defense, Substantial Assistance is the most commonly utilized method to avoid the severe penalties the crime of Possession of Child Pornography carries.

The prosecutor is authorized by statute to ask the court to reduce or suspend a sentence of any person who is convicted of Possession of Child Pornography when the person provides substantial assistance in the identification, arrest, or conviction of any other person involved in child pornography.

Contact Federal Defense Lawyer Richard Hornsby

If the Federal government is prosecuting you for the crime of Possession of Child Pornography, contact Federal Criminal Defense Lawyer today.

The initial consultation is free and I am always available to advise you on the proper course of action that can be taken.

References

  1. 18 U.S.C. § 2252(c)