100-year Sentence for Non-production Child Porn Offenses Affirmed

U.S. v. Franklin, -- F.3d --, 2015 WL 2167567 (5/11/15)(published) - Consecutive sentences totaling 100 years for five child porn offenses, including advertising, receipt, distribution, and possession -- all non-production offenses -- affirmed by the 10th Circuit. Mr. Franklin had no criminal history. The Tenth holds there was sufficient evidence to support his conviction of advertisement or notice of child porn, based on provision of images to "friends" through a website called "GigaTribe." "Advertisement" and "notice" are everyday words to be interpreted by their dictionary definitions and a rational fact-finder could conclude Mr. Franklin's child porn postings constituted advertisements or notices under 18 U.S.C. § 2251(d)(1)(A). The 100-year sentence was substantively reasonable. Mr. Franklin pointed to disparities between his sentence and those in sixteen similar cases. However, no such evidence was provided to the district court and the cases cited by Mr. Franklin on appeal lacked info about the defendants' offense levels, criminal histories, and the specific offense circumstances. Consequently, the Tenth could not determine how similar the cited cases were to his case or whether the sentencing disparities were warranted. The court rejects, under a plain error standard, the argument that the facts underlying the sentencing enhancements should have been submitted to the jury and not found by the district court. Mr. Franklin's offense level was enhanced by fifteen levels based on court-found facts concerning distribution of child porn for something of value, pattern or activity of sexual abuse or exploitation of a minor, and depiction of at least 600 child porn images.