What is the Sentencing Commission good for? Statistics. They keep really good stats. And we can make use of the Commission’s own stats to fight against the Commission’s own guidelines.
The Commission just issued a report, Mandatory Minimum Penalties for Federal Sex Offenses (2019), with the critical conclusion that “unwarranted sentencing disparities” result from “inconsistent application of the mandatory minimum penalty for receipt offenses.”
This is what the Commission is talking about: Under 18 USC § 2252A(b)(1), the statutory mandatory minimum sentence for receiving child pornography is five years in prison. In contrast, the mandatory minimum for possessing child pornography is, well, none. And because the Commission ties the guidelines to the statutory penalties, the base offense level for receipt is 22, while the base offense level for possession is just 18.
Now, you may be wondering, “what’s the difference between these two offenses? How does one possess without receiving?” (we are excluding production from our convo here). And “how does one receive without possessing?”
The Commission had the same questions about this irrational discrepancy, and while noting it is technically possible, it concluded that: “there is little meaningful distinction between the conduct involved in receipt and possession offenses . . .”
So, you next ask, why are some people subject to a harsher sentence for the same conduct? The answer, of course, is unilateral prosecutorial discretion to choose which charge to pursue. And we can do little about that, since the only avenue below a mandatory minimum in this context is cooperation and a motion under 18 USC 3553(e). Those are rare in CP cases.
But the Commission recognized that the inconsistency in charging practices could cause “unwarranted disparities,” something that Congress has directed the Commission and sentencing courts to avoid, under 18 USC § 3553(a)(6). The Commission made these key findings:
- "There was little difference in the offense seriousness between typical receipt cases, which require a five-year mandatory minimum penalty, and typical possession cases, which require none.”
- Even though the conduct may essentially be the same, the average sentence for receipt (5-yr MM) offenders is “substantially longer” than the penalty for possession (non-MM) offenders. “Child pornography offenders convicted of distribution (140 months) and receipt offenses (93 months), which carry a 5-year mandatory minimum penalty, also had a longer average sentence than offenders convicted of possession offenses (55 months), who did not face a mandatory minimum penalty.”
- This 2019 Report follows up on two other Commission reports, the 2011 Report on mandatory minimum penalties and the 2012 Report on Federal Child Pornography Offenses. The 2011 Report concluded that the guideline ranges “may be excessively severe and as a result are being applied inconsistently.” That Report recommended that Congress should “align the statutory penalties for receipt and possession to reduce unwarranted sentencing disparities resulting from inconsistent application of the mandatory minimum penalty for receipt cases.” The 2012 report said the same thing (at 326). Congress has yet to follow that recommendation, and the disparity remains.
How to use this information:
The Commission has thrice determined that “inconsistent application,” (read: prosecutorial discretion) in charging receipt (MM) rather than possession has resulted in “unwarranted sentencing disparities.” (2019 Report at 15 & 56). Use these reports to ask for a below-guideline variance. Argue that the variance should equal the calculation for a possession offense (base offense level 18) rather than a receipt offense (base offense level 22) under § 2G2.2. Otherwise, the “unwarranted disparity” will persist, contrary to 18 USC §3553(a)(6).
A few more helpful statistics from the Commission. First, for comparison to your case, the average sentence lengths from 2016:
And then below-guideline sentences. Only about one quarter of all child pornography offenses were sentenced within the prescribed guideline range. Less than 2% were above. The remainder, whether sponsored by the government or not, were below guideline. It appears that a guideline sentence, based on the Commission’s own data, creates an “unwarranted disparity.”
--Melody