Fifth Circuit Tosses Child Porn Conviction, Holds Image Wasn’t ‘Patently Offensive’

Whether a nude image of a minor is considered illegal depends on whether it’s “obscene.” But what does that mean? For decades, what has amounted to obscenity has never been clearly established by the courts. The Supreme Court did set some guidelines for obscenity cases – 50 years ago – but it still left the door open to different interpretations. This has resulted in numerous challenges to obscenity cases, including child pornography cases, with the outcome hinging largely on where the case lies and what society there thinks is obscene.

That’s why it was a surprise to me when a divided panel of the U.S. Court of Appeals for the Fifth Circuit recently held that a depiction of a minor in a sexual setting was not obscene, tossing the conviction and the attached 24-year sentence. That court is one of the most conservative in the country. Here’s how it happened.

The case arose when law enforcement found numerous drawings and stories that the defendant had been collecting and trading online for almost 30 years. The grand jury eventually charged a total of nine counts, and a jury convicted him of all those counts at trial. He was sentenced to 40 years in prison, by judge Walter David Counts III in the Western Dist. of Texas, and he appealed.

On appeal, the Fifth Circuit tossed one conviction for possession of a drawing of a minor engaged in solo sexual activity. A drawing of a nude minor is illegal under federal law if it:

depicts a minor engaging in sexually explicit conduct; and is obscene; or depicts an image that is, or appears to be, of a minor engaging in graphic bestiality, sadistic or masochistic abuse, or sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex; and lacks serious literary, artistic, political, or scientific value.

18 U.S.C. § 1466.

The Court cited the Supreme Court’s definition of “obscenity” in Miller v. California, 413 U.S. 15 (1973), and found that this particular drawing was not illegal. There are three factors a court must consider, under Miller, in deciding whether a depiction is “obscene”:

  • whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appealed to the prurient interest,

  • whether the work depicted or described, in a patently offensive way, sexual conduct specifically defined by the applicable state law, as written or authoritatively construed, and

  • whether the work, taken as a whole, lacked serious literary, artistic, political, or scientific value.

The Fifth Circuit concluded that, while the other convictions involved minors being forced to perform sexual acts, this count of conviction did not:

[T]he charged image in Count 1 is a simple black and white pencil or charcoal drawing with minimal detail depicting an adolescent girl alone, [performing a solo sexual act]. Importantly, unlike the children depicted in the images in Counts 8 and 9, there is no indication that the subject of the image in Count 1 is being forced to perform a sexual act. The drawing is simple and utterly lacking in violent depictions. Our independent constitutional review of the image charged in Count 1 leads us to the conclusion that it is not obscene under Miller.

The takeaway is that a conviction under § 1466 requires there to be some use of force or violence in the depictions, coupled with the sexual activity. A mere depiction of a nude minor, even if sexually suggestive, is not enough, the Fifth Circuit held in this case. The Court remanded the case back to the district court to dismiss the conviction. See United States v. Arthur, 2022 U.S. App. LEXIS 28430, __ F.4th __ (5th Cir. Oct. 12, 2022).

While this result may not be helpful to the defendant in this case, since he has several other charges that could still amount to a lengthy prison sentence, it’s rather instructive for those charged under this offense on exactly what’s required for the government to obtain a conviction. Convictions for drawings of nude minors has always been a questionable topic, but I think this case sets a higher bar for the government to clear when going after these kinds of cases. Mere nudity and sexual activity in the drawing isn’t enough.

Federal Appeals Court Says Fetus Isn`t a `Person` for Federal Sentencing Enhancement Purposes

The Tenth Circuit held in United States v. Adams, No. 21-3043 (10th Cir. July 20, 2022), that because Kansas includes injury to a fetus in its aggravated battery statute, a prior conviction for that offense could not be used to enhance a firearm sentence, even if the prior offense had nothing to do with a fetus. The case raises some bigger questions about states that count a fetus as a “person” under their criminal laws.

This case was a direct appeal after a defendant was convicted of unlawful possession of a firearm (18 U.S.C. sec 922(g)) and was handed a 51-month prison sentence in federal court. The sentence was enhanced because the defendant had a prior “crime of violence,” under USSG sec 2K2.1(a)(4), for aggravated battery in Kansas. A crime of violence is defined under the U.S. Sentencing Guidelines as an offense that has as an element the use of “physical force against the person of another.” (USSG sec 4B1.2)

The Tenth Circuit held that a Kansas aggravated battery conviction wasn`t “categorically” a crime of violence for USSG purposes because it included injury to a “fetus,” and a fetus was not a “person” under the USSG. This meant the Kansas aggravated battery offense was overbroad and fell outside the federal definition of “crime of violence,” and so couldn`t be used to enhance the defendant`s sentence. The court vacated the sentence and remanded for resentencing without the enhancement.

This case raises some interesting questions about enhancements in federal sentencing, particularly for anyone sentenced under the career offender guideline or the Armed Career Criminal Act. Killing or injuring a fetus in many states is considered a felony. Even the feds have a law against causing death or injury to a fetus. It`s called the Unborn Victims of Violence Act of 2004 (18 U.S.C. sec 1841).

But if a fetus isn`t a “person” for federal sentencing purposes, does this exclude prior convictions under state and federal law dealing with harm to a fetus? Even if someone kills the mother, and as a result her fetus, the “categorical approach” requires that the federal sentencing court must determine if the prior offense meets the definition of a “crime of violence” for certain sentencing enhancements. If it reaches beyond that definition, it`s no good for an enhanced sentence.

I`d say keep an eye on this developing area of law. This could have a wider-reaching effect in the federal system than just firearm sentencing.


Supreme Court Unties Hands of Federal Sentencing Judges

The Supreme Court untied the hands of federal sentencing judges today by holding that, unless the statutory provision allowing for a sentence reduction expressly prevents the judge from considering certain facts in crafting the new sentence, the judge may use his broad discretion to impose whatever sentence he sees fit in that case. See Concepcion v. United States, No. 20-1650 (S. Ct. June 28, 2022).

Though it was a case dealing with a sentence reduction under the First Step Act`s changes to the crack cocaine sentencing scheme, which opened qualifying drug offenses for resentencing under the revised crack cocaine laws enacted in 2010, the Court`s opinion firmly establishes that federal sentencing judges may consider all sorts of facts and evidence when deciding to reduce a sentence, even years later.

The case came out of the Dist. of Massachusetts, where Carlos Concepcion was sentenced in 2009 for a crack and powder cocaine offense. He was subject to 5 to 40 years in prison, but because of a prior drug offense in state court, that doubled to 10 years to life, under 21 U.S.C. sec 851. He was also deemed a “career offender” because of some prior violent convictions in state court that increased his U.S. Sentencing Guidelines to just under 30 years in prison. But Concepcion got some leniency and Dist. Judge William G. Young handed him 228 months, citing his troubled youth.

When the First Step Act of 2018 took effect, lowering his sentence exposure for the crack offense, he filed for relief and was denied. The district court held that it lacked the discretion under the Act to consider any changes in the law or his good behavior since his sentencing in 2009. A split First Circuit upheld the denial, over a vigorous dissent by Judge David J. Barron, and the Supreme Court agreed to hear the case.

Justice Sotomayor began by noting that “a judge at sentencing considers the whole person before him or her as an individual,” and that the judge “considers the defendant on that day, not on the date of his offense or the date of his conviction.”

The Court held that when a statute does not expressly prevent a sentencing judge from considering certain factors, it has the “wide discretion” to consider all kinds of factors:

It is only when Congress of the Constitution limits the scope of information that a district court may consider in deciding whether, and to what extent, to modify a sentence, that a district court`s discretion to consider information is restrained. Nothing in the Frist Step Act contains such a limitation. Because district courts are always obligated to consider nonfrivolous arguments presented by the parties, the Fist Step Act requires district courts to consider intervening changes when parties raise them.

There were four dissenting Justices (led by Justice Brett Kavanaugh and joined by Justices Robertson, Alito, and Barrett) who would have upheld the lower court`s lack of discretion in modifying a sentence. They pointed out that the First Step Act “reflects a compromise among competing interests” in Congress and that it was a “heavily negotiated” piece of legislation. “The Court`s decision today unravels the legislative compromise reflected in the statutory text,” the dissent said.

But this ignores one critical point: The legislative history of a statute is only considered when the text of the statute is ambiguous and further meaning must be derived from what the lawmakers intended. Nobody claimed that the text of the statute in this case was ambiguous. Instead, the dissenters looked to the legislative history to undermine the idea that federal sentencing judges should have any discretion at sentencing. I think this is misleading, at best.


Sentencing Data Show Major Increase in Federal Drug, Gun, and Sex Offense Cases in 2021

The data is out for 2021 and for the first time there were more federal drug convictions than immigration offenses. There were also many more sex offense cases than ever before, and (unsurprisingly) a bigger crackdown on gun crimes. Here`s how the numbers break down from the recent report from the U.S. Sentencing Commission (USSC).

Total number of cases:

Overall, there were 57,377 federal criminal convictions in 2021. This was the lowest number of convictions since 1999, and 33.5% below the peak number of federal convictions reached in 2014.

The most common offenses:

The most common offenses were drug trafficking, firearms, and fraud/theft/embezzlement. Combined with immigration, these offenses made up 83.1% of all federal criminal cases.

A closer look at federal drug convictions:

Drug offenses surpassed immigration offenses for the first time in 2021, making up 31.3% of the total number of convictions in the federal courts.

While drug possession cases continued to decline for the last 5 years, drug trafficking convictions rose 7.4% since 2020.

Over two-thirds (67.7%) of drug trafficking cases required the court to impose a mandatory minimum sentence.

Methamphetamine continued to be the most common drug type involved in these cases, but fentanyl cases jumped 45.2% from 2020 and were the fourth most common drug type.

Source: U.S. Sentencing Commission`s website (click here)

USSC Report Highlights Problems with Sentencing in Child Porn Cases

If Congress wants to complain that federal judges are “too lenient” on child pornography offenders, it may want to take a look at a recent report by the U.S. Sentencing Commission (USSC) for some answers.

The Report, titled Federal Sentencing of Child Pornography Non-Production Offenses, was released in June 2021 and is nearly identical to the USSC`s 2012 report on sentencing in child pornography cases, continuing to criticize the Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today Act (PROTECT Act), enacted by Congress in 2003 to curb sex offenses by imposing long prison sentences.

The PROTECT Act, the Report re-emphasized, was the first and only time that Congress directly amended the U.S. Sentencing Guidelines (USSG), over the USSC`s objections, adding numerous enhancements to increase the recommended sentencing range for child pornography offenses. The law also directed the USSC not to undo any of the changes Congress made to the child pornography guidelines.

The Report analyzed child pornography data for non-production offenses and addressed the following areas.

The Typical Child Pornography Offender

The typical federal child pornography offender, the Report says, is a 41 year-old college-educated white male who`s never been in trouble. More specifically, over 80% of offenders were white, compared to just 19% of offenders in other federal crimes. And over half were college-educated, compared to only 20% for other federal offenses.

Comparing Child Pornography Offenses

The Report focused on three separate non-production child pornography offenses — Possession, distribution, and receipt — and the guideline that`s used to craft a recommended sentencing range for each, USSG sec 2G2.2. The Report noted that possession and receipt are “materially identical,” but the base offense level for receipt is four levels higher than possession (18 versus 22). All three offenses are subject to the same enhancements, which often ratchets up the sentence for even first-time offenders.

The big difference in this Report, compared to the 2012 Report, is that distribution cases have far exceeded possession cases. The Report says this is because of a change in charging practices by the government, pushing for higher sentences, since distribution and receipt charges carry a mandatory minimum five-year sentence but possession does not. This gives federal judges less discretion in sentencing child pornography offenders. This charging practice changed in 2011, with receipt and distribution charges exceeding possession charges year after year.

Enhancements for Child Pornography Sentencing

The enhancements for federal child pornography sentencing was the area of focus in the USSC`s Report. The most common enhancements applying to all cases for the three offenses were:

Victim age less than 12: 96%
Sadistic or masochistic content: 78 to 90%
Use of a computer: 96%
More than 600 images: 87 to 97%

These enhancements, the Report says, increased the recommended sentencing range to well above the base offense level for the offense in nearly all of the cases. The Report cites improvements in technology that have largely been the driver of these enhancements and Congress` failure to take this into consideration. For example, the average number of images involved in a typical possession case was 2,350 in 2019, thanks to increased and affordable computer storage devices, meaning almost every case received the maximum enhancement for possessing more than 600 images.

Child Pornography Sentencing Trends

Child pornography sentencing trends in the federal courts have steadily pulled away from the child pornography sentencing guideline, USSC sec 2G2.2, with judges routinely handing out lower sentences than what the Guidelines recommend.

Non-production child pornography cases had the lowest rate of “within-Guidelines” sentences, year after year, the Report said. Only 39.6% of the time judges imposed a within-Guidelines sentence in a child pornography case. The rest of the time offenders were handed sentences well below the recommended range under USSG sec 2G2.2. This was due to two factors: Judges disregarding USSG sec 2G2.2`s recommended sentencing range, and the government asking for a lower sentence. Sometimes it was both.

The minimum recommended sentence under the USSG for non-production offenses has risen from 98 months in 2005 to 136 months in 2019. However, the actual average sentence imposed by judges has remained about the same: 91 months in 2005 and 103 months in 2019.

The Huge Disparity in Child Pornography Sentencing

The problem with the huge disparity in federal child pornography sentencing was summed up best in the Report:

As courts and the government contend with the outdated statutory and guideline structure, sentencing disparities among similarly situated non-production child pornography offenders have become increasingly pervasive. Charging practices, the resulting guideline ranges, and the sentencing practices of judges have all contributed to some degree to these disparities.

The report cited the disparities by offense type, each offense using the same guideline calculation with a widely different sentence imposed:

Possession: Probation to 228 months
Receipt: 37 months to 180 months
Distribution: One month to 240 months

Recidivism of Child Pornography Offenders


Despite the popular belief that child pornography offenders almost always commit another sex offense, the Report shows this is not true. Of the 1,340 child pornography offenders sentenced under USSG sec 2G2.2, 14.5% were repeat offenders, having had at least one prior qualifying sex offense to enhance their sentence. However, the USSC found that child pornography offenders were arrested for a new sex offense 4.3% of the time, and a non-sexual offense 16% of the time.


IN CONCLUSION, the Report unsurprisingly found that USSG sec 2G2.2 “fails to distinguish adequately between more and less severe offenders,” and that the enhancements for child pornography offenses have become “so ubiquitous that they now apply in the vast majority of cases.” Wrapping up the Report, the USSC repeated what it said in its 2012 Report: USSC sec 2G2.2 “no longer effectively differentiates among offenders in terms of either the seriousness of the offense or culpability of the offender.”

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