In U.S. v Cubero the Defendant appealed from his 151 month federal sentence and life-term of supervised release. He was sentenced in federal court after pleading guilty to one count of distribution of child pornography and two count of possession of child pornography in violation of 18 U.S.C. 2252(a)(4)(B). For various reasons he argued that his sentenced was procedurally and substantively unreasonable. His procedural challenges were anchored to a double counting argument that he received a two level increase under the sentencing guideline provision U.S.S.G. 2G2.2(b)(3)(F) for the distribution of child pornography, in that both the base offense level and the section 2G1.2(b)(3)(F) cover the act of distribution. The court of appeals rejected the argument by finding that the base offense level covers multiple possible violations of §2252(a)(2) including knowing distribution, knowing receipt, and knowing reproduction, and the guideline addressed the range of harms associated with child pornography distribution through various offense level increases and decreases.
He argued he was entitled to a two level decrease under USSG § 2G2.2(b)(1), which provides for a two-level decrease if the defendant's conduct was limited to receipt or solicitation of child pornography and the defendant did not intend to traffic in or distribute the material. Unfortunately, the argument failed because the defendant used a peer to peer file sharing network to obtain hundreds of images and he elected to make them available to others.
The court rejected the Defendant's next procedural challenges: the district court treated the guidelines range as presumptively reasonable; failed to properly consider non-guideline § 3553(a) factors; failed to properly consider the Defendant's argument for variance, and failed to adequately explain its sentence. It found the sentencing court heard all the factual and legal arguments in favor of a variance but was "not convinced that based upon the images, [it] should go below the guidelines", while stating that it would not "sentence below the guidelines in the exercise of its discretion."