Saturday, September 18, 2010

PC World

United States v. Ahders, No. 09-4093-cr (2d Cir. September 16, 2010) (Katzmann, Hall, Chin, CJJ) (per curiam)

In this latest per curiam, the court vacated a long sentence imposed for producing child pornography, because the district court did not make adequate findings on a sentencing enhancement.

Steven Ahders pled guilty to a single production count that alleged he victimized a “male minor,” his step-son. Ahders had also abused two of the boy’s friends, however, and at sentencing the court “grouped” the other children into his Guidelines calculations, even though that conduct was not charged. The circuit rejected Ahders’ argument that this was error. The relevant Guideline, § 2G2.1, expressly provides that if the abuse involved more than one minor the court should treat each child as if a separate count of conviction.

However, the court agreed with Ahders that the district court did not adequately explain its application of the four-level enhancement for possessing material depicting “sadistic or masochistic” conduct. The court could only impose the enhancement if it found that either the offense of conviction or its relevant conduct involved sadomasochistic material. The problem here was that, although the record suggested three possible grounds for the enhancement, the district court did not make adequate findings on any of them.

First, while Ahders took pictures of his step-son that would qualify, the district court did not appear to rely on those particular images in applying the enhancement. A second possible ground related to the relevant conduct, but Ahders disputed some of those facts and the district court did not resolve them. A third possible ground for the enhancement - and the one the district court seems to have relied on - involved Ahders’ possession of sadomasochistic images that he did not produce. No circuit has yet resolved the question of when possessing sadomasochistic images is relevant conduct to the production of child pornography, and here the district court made no specific findings on the point. The circuit proposed a long list of possible factors that the district court might look to on remand, and sent the case back so that the district court could clarify its basis for imposing the enhancement.

1 Comments:

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September 30, 2010 at 6:23 AM  

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