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Enhanced sentence for distributing child pornography to a minor reversed because the government failed to prove the person to whom it was sent was in fact a real child

The court of appeals held that the 5-level enhancement for distributing child pornography to a minor requires proof it was intended for an actual child or a fictitious child created by law enforcement. In U.S. v. Fulford, the Defendant was convicted of possessing and distributing child pornography and given a 5 level enhancement under sentencing guidelines section 2G2.2(b)(3). According to the presentence investigation report (PSR), Fulford entered into an on-line chat room with children to whom he distributed child pornography. At sentencing, the district court made a fact finding which showed that Fulford chatted over the internet with a person named “Dawn” who claimed she was a 13 year old female. Because the court found the defendant sent child pornography to Dawn, who he believed to be a minor, it applied the 5 level increase even though the sentencing court did not make a finding about whether Dawn was actually a minor. Fulford objected to this enhancement arguing that the government never proved that Dawn was in fact a minor, as defined by the guidelines, and the enhancement did not apply.

The government did not show that any of the individuals whom he sent images were in fact minors. The government argued that the evidence showed he distributed child pornography to a minor based on the user’s name and purported age. The government also argued that regardless of her actual age and identity, it was sufficient to apply the enhancement if the government can show the defendant thought she was a minor and intended to distribute the child pornographic images to her. At sentencing the government offered testimony from its case agent that an examination of his computer showed that Fulford exchanged images with people who, the agent inferred, were minors. Yet there was no proof any were in fact minors.

Under the definition of a “minor” given under this guidelines enhancement, Dawn would have to be one of the following:
1. an actual individual under the age of 18;
2. a fictitious person that a law enforcement officer represents to be under 18; or 3. an undercover law enforcement officer posing as a person under age 18.
The defendant argued that the only recipients the government could point to were adults, none of which were police officers, and the sentence enhancement should not apply.

The appellate court gave a strict reading of the commentary’s definition of a minor and rejected the government’s argument that it includes anyone the defendant believes is a minor, other than the fictitious law enforcement officer. Here, the person named Dawn was neither a law enforcement officer posing as a minor nor was she a fictitious minor created by law enforcement officer. In order for the enhancement to apply the government would have to prove that Dawn was actually under the age of 18 at the time of the offense. Where the defendant is not dealing with a law enforcement officer, the enhancement applies only if the minor is real. Because the sentencing court made no finding of Dawns actual age, the case was remanded to make a finding whether or not the government has proven by a preponderance of the evidence that the images were sent to a minor under 18.