A Partial Fix to the 2G2.2 Guideline

A paper written by Brent E. Newton, adjunct Professor of Law, American and Georgetown Universities and who served as Deputy Staff Director of the United States Sentencing Commission from 2009 until 2019 and was the primary staff author of the Commission’s December 2012 report to Congress concerning federal child pornography offenses, discusses how he believes that the guidelines can be partially fixed without Congress having to get involved. However, due to the lack of a quorum, the Sentencing Commission cannot meet for regular business until they have enough members. Here is the introduction to the report.

Except for the criminal penalties for crack cocaine offenses, no specific federal non-capital penalty structure has been more widely criticized than USSG section 2G2.2 and the corresponding federal penal statutes, 18 U.S.C. sections 2252 & 2252A. Together, those provisions govern penalties for child pornography offenses other than those involving actual production of child pornography (henceforth, “non-production offenses”). Indeed, one of the leading sources of criticism has been the United States Sentencing Commission, whose 300-plus-page report to Congress in December 2012, “Federal Child Pornography Offenses”, made a compelling case for changing both the guideline and, to a lesser degree, the statutes. The Second Circuit interpreted the Commission’s report as “effectively disavow[ing] section 2G2.2.”

Although the best solution to the problem with section 2G2.2 would be to completely scrap the current guideline and rewrite it from scratch, such a change by the Commission would require congressional authorization. As I discuss below, Congress appears unwilling to allow the Commission to completely rewrite the guideline. However, as I also explain, there is a partial – and quite significant – fix available without congressional permission. That partial fix could be best accomplished by the Sentencing Commission in an amendment to section 2G2.2. If the Commission does not amend the guideline, then my proposal provides a detailed roadmap for federal district judges to “vary” from the current, broken guideline pursuant to the authority granted by the Supreme Court in United States v. Booker [554 US 220 (2005))] and Kimbrough v. United States [552 US 85 (2007))].

In his report, Newton goes on to discuss several changes that he proposes that circumvent the congressional mandates from changing some of the categories, moving some and doing other small changes. For example, the current guideline has two base offense levels: (a)(1) 18, if the defendant is convicted of 18 U.S.C. section 1466A(b), section 2252(a)(4), section 2252A(a)(5), or section 2252A(a)(7) or (b) 22 otherwise. It also goes on to state: (b)(1) If (A) subsection (a)(2) applies; (B) the defendant’s conduct was limited to the receipt or solicitation of materials involving the sexual exploitation of a minor; and (C) the defendant did not intend to traffic in, or distribute, such material, decrease by 2 levels.

So in essence, there are actually three base levels: 16, 18, or 22. Under the new guideline proposal, Newton actually proposes raising the base level. Despite this change, he notes “Although, at first blush it appears that the amendment’s base offense levels are more punitive than the existing guidelines’ two base offense levels, the amendment’s base offense levels actually effectively reduce the existing base levels. This is because the amendment’s base offense levels account for two levels for use of a computer [applied in 96.6% of cases] and five levels for possession 600 or more images [applied in 76.7% of cases] – two aggravating factors both required by congressional directives that apply in the vast majority of cases today.

At the end of his report, Newton goes on to give four specific examples and how the current and proposed guidelines stack up to each other to allow readers to see how they would apply. If you are interested in viewing the entire report, you can have someone download it from https://ssrn.com/abstract=3431170

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