Mandatory Minimum Sentencing for Federal Sex Offenses: An Overview

Congressional research reportMar 2, 2012

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Mandatory Minimum Sentencing for

Federal Sex Offenses: An Overview

(name redacted)

Senior Specialist in American Public Law

March 2, 2012

Congressional Research Service

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www.crs.gov

R42386

CRS Report for Congress

Prepared for Members and Committees of Congress

Mandatory Minimum Sentencing for Federal Sex Offenses: An Overview

Summary

Sex offenses are usually state crimes. Federal law, however, outlaws sex offenses when they

occur on federal lands or in federal prisons, when they involve interstate or foreign travel, or

when they involve child pornography whose production or distribution is associated in some way

with interstate or foreign commerce. Mandatory minimum terms of imprisonment attend

conviction for any of several of these federal sex crimes.

The most severe mandatory minimum sentences have been reserved for aggravated sexual

assaults committed in federal enclaves or federal prisons, for sex offenses resulting in death, and

for sex crimes committed against children by repeat offenders.

Two-thirds of the federal trial judges responding to a U.S. Sentencing Commission survey

questioned the severity of the mandatory minimum penalties required for receipt of child

pornography (5 years; 15 years for repeat offenders). The Commission’s report suggested that the

perception may lead to inconsistent sentencing in child pornography cases. It explained that more

study would be required before it could make any specific recommendations concerning

mandatory minimum sentencing in sex offenses.

The constitutional authority to enact federal sex offense punishable by mandatory minimum terms

of imprisonment is not unlimited. The ex post facto and double jeopardy clauses; the Fifth

Amendment’s equal protection component; the Eighth Amendment’s cruel and unusual

punishment clause; the separation of powers and the reservation of powers principles—all

establish boundaries that must be honored. Nevertheless, few defendants have successfully

challenged the constitutionality of a mandatory minimum term of imprisonment imposed

following their conviction for a federal sex offense.

This report is available in an abridged version as CRS Report R42387, Mandatory Minimum

Sentencing for Federal Sex Offenses: An Abridged Overview, without the footnotes or citations to

authority found here.

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Mandatory Minimum Sentencing for Federal Sex Offenses: An Overview

Contents

Introduction...................................................................................................................................... 1

Background...................................................................................................................................... 1

What Is a Mandatory Minimum?............................................................................................... 2

Constitutional Considerations.......................................................................................................... 3

Legislative Authority ................................................................................................................. 4

Cruel and Unusual Punishment ................................................................................................. 4

Separation of Powers................................................................................................................. 5

Equal Protection ........................................................................................................................ 5

Recidivism, Ex Post Facto and Double Jeopardy...................................................................... 6

Federal Enclaves and Prisons .......................................................................................................... 7

Chapter 109A Offenses.............................................................................................................. 8

Definitions........................................................................................................................... 9

Aggravated Sexual Abuse ................................................................................................... 9

Sexual Abuse..................................................................................................................... 11

Abusive Sexual Contact .................................................................................................... 11

Repeated Sex Offenses Against Children.......................................................................... 11

Restitution ......................................................................................................................... 13

Supervised Release............................................................................................................ 13

Travel and Commerce.................................................................................................................... 16

Chapter 117.............................................................................................................................. 16

Coercion and Enticement .................................................................................................. 17

Transportation of a Minor ................................................................................................. 18

Travel to Sexually Abuse a Child ............................................................................................ 19

Commercial Sex Trafficking of a Child or by Force ............................................................... 19

Murder in the Course of Certain Sexual Offenses................................................................... 21

Restitution and Supervised Release......................................................................................... 22

Child Pornography......................................................................................................................... 23

Production of Child Pornography............................................................................................ 23

Subsection 2251(a): Use of a Child to Produce....................................................................... 24

Subsection 2251(b): Permitting the Use of a Child to Produce............................................... 25

Subsection 2251(c): Overseas Production............................................................................... 26

Subsection 2251(d): Advertising ............................................................................................. 26

Selling or Buying Children for Pornographic Purposes .......................................................... 26

Certain Activities Involving Child Pornography (Real Child) ................................................ 27

Transporting ...................................................................................................................... 28

Receipt or Distribution ...................................................................................................... 29

Sale or Possession With Intent to Sell ............................................................................... 30

Recidivist Possession ........................................................................................................ 31

Certain Activities Involving Child Pornography (Real and Virtual) ....................................... 32

Transporting ...................................................................................................................... 33

Receipt or Distribution ...................................................................................................... 34

Reproduction or Promotion............................................................................................... 35

Sale or Intent to Sell .......................................................................................................... 36

Offering Child Pornography to a Child............................................................................. 36

Recidivist Possession ........................................................................................................ 37

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Mandatory Minimum Sentencing for Federal Sex Offenses: An Overview

Child Molesting Enterprises.............................................................................................. 37

Restitution and Supervised Release......................................................................................... 38

Tables

Table 1. Federal Sex Offenses: Mandatory Minimum Terms of Imprisonment ............................ 39

Contacts

Author Contact Information........................................................................................................... 41

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Mandatory Minimum Sentencing for Federal Sex Offenses: An Overview

Introduction

A mandatory minimum sentencing statute is a law that requires a judge to impose a statutorily

prescribed sentence. It is most commonly understood to mean a statute that requires imposition of

a specific minimum term of imprisonment. The statutes that outlaw most federal crimes do not

call for a mandatory minimum sentence. Several statutes that outlaw federal sex offenses insist

upon a minimum term of imprisonment. This is a brief overview of those provisions.1

Background

Mandatory minimum sentences have been with us since the dawn of the Republic. The First

Congress made mandatory capital offenses of treason, murder in a federal enclave, piracy,

forgery, and counterfeiting.2 A few years later, the Sedition and Logan Acts arrived with sixmonth mandatory minimum terms of imprisonment.3 Congress made rape committed within the

maritime jurisdiction of the United States a mandatory capital offense in 1825.4 So the

punishment remained until the 1948 recodification of federal criminal law, when rape became

punishable by death or imprisonment for any term of years or for life.5

Congress increased the number of federal sex offenses and their attendant mandatory minimum

sentences beginning in 1978 with the enactment of the first federal child pornography statutes:

18 U.S.C. 2251, 2252.6 It filled out the complement of federal sex offenses with mandatory

minimum sentences of imprisonment at fairly regular intervals thereafter.7

For a general discussion of federal child sex abuse statutes, see CRS Report R42132, Sexual Abuse of Children:

Federal Criminal Offenses, by (name redacted).

Act of April 30, 1790, 1 Stat. 112-15 (1790).

Congress set the maximum term of imprisonment under the Sedition Act at five years and at three years under the

Logan Act, Act of July 14, 1798, 1 Stat. 596 (1798) and the Act of January 30, 1799, 1 Stat. 613 (1799), respectively.

Act of March 3, 1825, §4, 4 Stat. 115 (1825).

Rev. Stat. §5345 (1878); Act of March 4, 1909, §278, 35 Stat. 1143 (1909); 18 U.S.C. 2031 (1946 ed. Supp. II).

Protection of Children Against Sexual Exploitation Act of 1977, P.L. 95-225, §2(a), 92 Stat. 7 (1978).

18 U.S.C. 2241 (aggravated sexual assault): Sexual Abuse Act of 1986, P.L. 99-646, §87(b), 100 Stat. 3620 (1986).

18 U.S.C. 2251A(buying and selling a child for pornographic production): Child Pornography and Obscenity

Enforcement Act of 1988, Title VII N of the Anti-Drug Abuse Act of 1988, P.L. 100-690, §7512(a), 102 Stat. 4486

(1988).

18 U.S.C. 2245 (federal sex offenses resulting in death): Federal Death Penalty Act of 1994, Title VI, of the Violent

Crime Control and Law Enforcement Act of 1994, P.L. 103-322, §60010(a)(2), 108 Stat. 1972 (1994).

18 U.S.C. 2252A(child pornography (real and virtual): Child Pornography Prevention Act of 1996, Div. A, Title I, of

the Act Making Omnibus Consolidated Appropriations for the Fiscal Year Ending September 30, 1997, and for Other

Purposes, P.L. 104-208, §101(a), 110 Stat. 3009-28 (1996).

18 U.S.C. 3559(e)(mandatory life imprisonment for repeat sex offenders): Protection of Children from Sexual Predators

Act of 1988), P.L. 105-314, §501, 112 Stat. 2980 (1998).

18 U.S.C. 1591(sex trafficking): Trafficking Victims Protection Act of 2000, §112(a), P.L. 106-386, 114 Stat. 1487

(2000).

18 U.S.C. 2422(b)(enticement to child prostitution), 2423(a)(travel to engage in illicit sexual purposes): Prosecutorial

Remedies and Other Tools to End the Exploitation of Children Today Act (PROTECT Act) of 2003, §§103(a)(2)(B),

(a)(2)(C), P.L. 108-21, 117 Stat. 653 (2003).

18 U.S.C. 2242 (sexual abuse): Adam Walsh Child Protection and Safety Act of 2006, §§205, 207(2), P.L. 109-248,

(continued...)

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Mandatory Minimum Sentencing for Federal Sex Offenses: An Overview

In United States Sentencing Commission survey which addressed mandatory minimum sentences

in child pornography cases but not other sex offense cases, a majority of the judges responding to

a United States Sentencing Commission survey thought that the mandatory minimum sentences

for production and distribution of child pornography and other child exploitation offenses were

generally appropriate. Well over two-thirds, however, considered those for receipt of child

pornography too high.8

The Commission’s report on mandatory minimum sentencing statutes noted that its “review of

available sentencing data [relating to sex offenses] indicates that further study of these penalties is

needed before it can offer specific recommendations in this area.”9 It concluded preliminarily,

however, that “the mandatory minimum penalties for certain non-contact child pornography

offenses may be excessively severe and as a result are being applied inconsistently.”10

What Is a Mandatory Minimum?

There may be reasonable disagreement over what constitutes a mandatory minimum sentencing

statute. Even when limited to statutes that require a minimum term of imprisonment, questions

may arise with respect to: (1) statutes like 18 U.S.C. 2241(c) (sexual abuse of a child) that

requires offenders to be imprisoned for not less than 30 years or for life; (2) statutes like 18

U.S.C. 2242 (sexual abuse of an incapacitated victim) that requires offenders to be fined and

imprisoned for any term of years or for life; and (3) statutes like 18 U.S.C. 2241(a)(aggravated

sexual abuse) that requires offenders to be fined, imprisoned for any term of years or life, or both.

Subsection 2241(c) certainly appears to require a mandatory minimum sentence (“imprisoned not

less than 30 years”).11 Section 2242 also appears to require a mandatory minimum sentence,

absent the dubious conclusion that the phrase, “imprisonment for any term of years” authorizes a

court to impose a sentence of imprisonment for some particular number of years with the

permissible choices ranging from zero to infinity.12

(...continued)

120 Stat. 613, 615 (2006).

United States Sentencing Commission, Results of Survey of United States District Court Judges, January 2010

through March 2010, Question 1 (June 2010), available at

http://www.ussc.gov/Research/Research_Projects/Surveys/20100608_judge_Survey.pdf.

United States Sentencing Commission, Mandatory Minimum Penalties in the Federal Criminal Justice System (2011

Report), 365 (October 2011), available at http://www.ussc.gov.

Id. at 369.

This is the only one of the three that the Sentencing Commissions report identifies as having a mandatory minimum

sentencing provision. Id. at A-8.

The conclusion is doubtful because it requires the phrase “any” term of years to include a term of “no” years. As the

Supreme Court has said that the term “any” refers to each member or group of members of a class, that is, “read

naturally, the word ‘any’ has an expansive meaning, that is, ‘one of some indiscriminately of whatever kind,’” ALI v.

Federal Bureau of Prisons, 552 U.S. 214, 219 (2008). Thus, “any” can be read to mean “’all’ things.... Specifically,

‘any thing’ means quite literally ‘any thing whatever, something, no matter what,” United States v. Townsend, 630 F.3d

1003, 1011 (11th Cir. 2011).

Besides, the courts have been equally clear that construction often depends on context. United States v. AlvarezSanchez, 511 U.S. 350, 357 (1994)(emphasis in the original)(“Because the statute applies to persons in the custody of

‘any’ law enforcement officer or law enforcement agency, respondent suggests that the §3501(c) 6-hour time period

begins to run whenever a person is arrested by local, state, or federal officers. We believe respondent errs in placing

dispositive weight on the broad statutory reference to ‘any’ law enforcement officer or agency without considering the

(continued...)

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Mandatory Minimum Sentencing for Federal Sex Offenses: An Overview

The mandatory minimum status of subsection 2241(a)(“fine [or] imprisonment for any term of

years”) seems more debatable. The subsection can hardly be said to require a mandatory

minimum sentence of imprisonment, if a court is free to impose a fine instead. Moreover, in

another context, the courts have concluded that in the face of such language a court is free to

impose a fine instead of a term of imprisonment.13 Nevertheless, it is treated as requiring a

mandatory minimum sentence here, because as a practical matter a court is virtually required to

impose a sentence of imprisonment following conviction for a crime as serious as a violation of

subsection 2241(a).14

Constitutional Considerations

Defendants sentenced to mandatory minimum terms of imprisonment have challenged them on a

number of constitutional grounds ranging from Congress’s legislative authority, to cruel and

unusual punishment, through ex post facto and double jeopardy, to equal protection and due

process. Each constitutional provision defines the outer boundaries that a federal criminal statute

must be crafted to honor. Most statutes and the penalties they impose have survived scrutiny.

(...continued)

rest of the statute”). The phrase “any term of years” is a sentencing option reserved for most serious federal crimes—

murder, kidnaping, rape, 18 U.S.C. 1111, 2241, 1201. In addition, Congress has specifically declared that upon

conviction for one of these crimes no court may sentence a defendant to probation rather than imprisonment. (18 U.S.C.

3561(a)(“A defendant who has been found guilty of an offense may be sentenced to a term of probation unless—(1) the

offense is a Class A or Class B felony ...”). A Class A felony is one for which the maximum penalty is life

imprisonment, or for which the maximum penalty is death; a Class B felony is one for which the maximum penalty is

imprisonment for 25 years or more, 18 U.S.C. 3559(a)(1), (2).) It seems unlikely that Congress intended to permit a

court to forgo a sentence of imprisonment in such cases, as long as it did not impose probation.

United States v. Rowe, 414 F.3d 271, 280 (2d Cir. 2005)(“In United States v. Pabon-Cruz, 391 F.3d 86 (2d Cir.

2004), we vacated the defendant’s sentence and remanded for resentencing after holding that a violation of §2251(c)

did not require imposition of a 10-year mandatory minimum sentence. As worded when Mr. Pabon-Cruz was

prosecuted, §2251(c)’s penalty provision stated that violators ‘shall be fined under this title or imprisoned not less than

10 years nor more than 20 years, and both.’ 18 U.S.C. 2251(d) (emphasis supplied). This same language applied when

Rowe committed his crime. As we observed, ‘the “and both” language ... makes no sense as a matter of grammar,

usage, or law.... ’ 391 F.3d at 105. Accordingly, we held that the District Court had the discretion to sentence defendant

to either a fine or a term of imprisonment of not less than ten years or both. Because this was not clear to the parties or

to the District Court at the time of sentencing, we are required to vacate the sentence and remand the cause to the

District Court for resentencing consistent with our opinion here and with such Sentencing Guidelines as may be

applicable in the circumstances presented”); United States v. Rast, 293 F.3d 735, 738, 739 (4th Cir. 2002)(“This brings

us back to the peculiar structure of §2251(d), which allows a fine in lieu of imprisonment, but requires a term of ‘not

less than 10 years’ if imprisonment is imposed at all.... Section 2251(d) means just what Congress intended it to say: a

district court may impose either a fine or imprisonment of not less than ten nor more than twenty years, or both”).

Although the Sentence Guidelines are advisory, a sentencing court must begin the sentence process by calculating the

sentencing range recommended by the Guidelines, Gall v. United States, 552 U.S. 38, 49 (2007). The sentencing range

for the base offense level of a violation of subsection 2241(a) begins at imprisonment for twelve years and seven

months, U.S.S.G. §2A3.1, ch. 5 (Sentencing Table). A sentence will be upheld on appeal, if it is procedurally and

substantively reasonable, Gall v. United States, 552 U.S. at 51. A sentence is procedurally reasonable, if it is free

procedural defects such as the failure to properly calculate the recommended sentencing range under the Guidelines, id.

A sentence is substantively reasonable, if it is appropriate “tak[ing] into account the totality of the circumstances,

including the extent to any variance from the Guidelines range,” id.

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Mandatory Minimum Sentencing for Federal Sex Offenses: An Overview

Legislative Authority

The federal government is a creature of the Constitution.15 It enjoys only such powers as can be

traced to the Constitution. All other powers are reserved to the states or to the people.16 The

Constitution grants Congress authority to enact legislation “necessary and proper” to the

execution of those powers which it vests in Congress or in any officer or department of the

federal government.17 Among the powers which the Constitution bestows upon Congress are the

powers to define and punish felonies committed upon the high seas, to exercise exclusive

legislative authority over certain federal territories and facilities, to make rules governing the

armed forces, and to regulate interstate and foreign commerce, and to enact legislation necessary

and proper for the execution of those and other constitutionally granted powers.18

Many of the existing federal sex offenses with mandatory minimum sentencing requirements

were enacted pursuant to Congress’s legislative authority over crimes occurring on the high seas

or within federal enclaves,19 or to its power to regulate commerce.20

The Supreme Court has explained that under the commerce clause: “Congress may regulate the

use of the channels of interstate commerce. Second, Congress is empowered to regulate and

protect the instrumentalities of interstate commerce, or persons or things in interstate commerce,

even though the threat may come only from intrastate activities. Finally, Congress’ commerce

authority includes the power to regulate those activities having a substantial relation to interstate

commerce.”21 When a statute falls for want of legislative authority, the penalties it would impose

fall with it. This has yet to occur in the area of mandatory minimum sentences.

Cruel and Unusual Punishment

The Eighth Amendment bars mandatory capital punishment statutes.22 And although the case law

is somewhat uncertain, it seems the Amendment condemns any punishment that is “grossly

disproportionate” to the misconduct for which it is imposed.23 A sentence imposed under a

United States v. Lopez, 514 U.S. 549 (1995).

U.S. Const. Amend. X.

U.S. Const. Art.I, §8, cl.18; see generally United States v. Comstock, 130 S.Ct. 1949 (2010).

U.S. Const. Art.I, §8, cls.10, 17, 14, 3, and 18 respectively.

E.g., 18 U.S.C. 2241(a)(“Whoever, in the special maritime and territorial jurisdiction of the United States ... knowing

causes another person to engage in a sexual act—(1) by using force against that other person ... shall be ... imprisoned

for any term of years or life ...”).

E.g., 18 U.S.C. 2251(a), (e)(“(a) Any person ... who transports any minor in or affecting interstate or foreign

commerce ... with the intent that such minor engage in any sexually explicit conduct for the purpose of producing any

visual depiction of such conduct.... (e) Any individual who violates ... this section shall be ... imprisoned not less than

15 years ...”).

United States v. Morrison, 529 U.S. 598, 609 (2000)(internal citations omitted), quoting United States v. Lopez, 514

U.S. 549, 558-59 (1995).

Woodson v. North Carolina, 428 U.S. 280, 305-306 (1976).

Ewing v. California, 538 U.S. 11, 31-2 (2003); Graham v. Florida, 130 S.Ct. 2011, 2022-23 (2010). Although

ordinarily not relevant in mandatory minimum sentencing cases, the Eighth Amendment also precludes punishment for

the second category of cases, those involving crimes which Congress may not constitutional proscribe or those

involving defendants it may not constitutionally punish, id. at 2222 (“The second classification of cases has used

categorical rules to define Eight Amendment standards. The previous cases in this classification involved the death

penalty. The classification in turn consists of two subsets, one considering the nature of the offense, the other

(continued...)

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Mandatory Minimum Sentencing for Federal Sex Offenses: An Overview

mandatory minimum federal sex offense statute might be “grossly disproportionate” to the

offense under extreme circumstances, but the sentences in most cases are not.24

Separation of Powers

While “it remains a basic principle of our constitutional scheme that one branch of the

Government may not intrude upon the central prerogatives of another,”25 the Supreme Court has

observed that “Congress has the power to define criminal punishments without giving the courts

any sentencing discretion.”26 Thus, the lower federal courts have regularly upheld mandatory

minimum statutes when challenged on separation of powers grounds,27 and the Supreme Court

found no separation of powers infirmity in the federal sentencing guideline system, a system

which might have been thought to produce its own form of mandatory minimums.28

Equal Protection

The Fifth Amendment due process clause embodies an equal protection component that cabins

federal action in the manner that the Fourteenth Amendment equal protection clause cabins state

action.29 Equal protection precludes punishing a defendant more severely than others similarly

(...continued)

considering the characteristics of the offender”).

United States v. Brucker, 646 F.3d 1012, 1018-19 (7th Cir. 2011)(10-year mandatory minimum sentence for

attempting to entice a child to engage in sexual activity in violation of 18 U.S.C. 2422(b) did not constitute cruel and

unusual punishment); United States v. Hughes, 632 F.3d 956, 959-60 (6th Cir. 2011)(same); United States v. Malloy,

568 F.3d 166, 180 (4th Cir. 2009)(15-year mandatory minimum sentence for production of child pornography in

violation of 18 U.S.C. 2251 did not constitute cruel and unusual punishment); United States v. Polk, 546 F.3d 74, 78

(1st Cir. 2008)(same); United States v. Meiners, 485 F.3d 1211, 1213 (9th Cir. 2007)(15-year mandatory minimum

sentence for advertising child pornography in violation of 2252A(a)(2) did not constitute cruel and unusual

punishment).

Loving v. United States, 517 U.S. 748, 757 (1996).

United States v. Chapman, 500 U.S. 453, 467 (1991).

United States v. Brucker, 646 F.3d 1012, 1019 (7th Cir. 2011)(18 U.S.C. 2422(b)(attempting to entice to commit a

sexual act); United States v. Hughes, 632 F.3d 956, 962 (6th Cir. 2011)(same); United States v. Paige, 604 F.3d 1268,

1274 (11th Cir. 2010)(18 U.S.C. 2252A(child pornography)); United States v. MacEwan, 445 F.3d 237, 250-52 (3d Cir.

2006)(same).

Mistretta v. United States, 488 U.S. 361, 412 (1989). Mistretta, sentenced under the guidelines to 18 months’

imprisonment for conspiracy to distribute cocaine, argued that the guidelines constituted an unconstitutional delegation

of Congress’s legislative authority and that the service of judges upon the Commission constituted extrajudicial service

at odds with the separation of powers doctrine. The Court rejected both arguments concluding “that in creating the

Sentencing Commission ... Congress neither delegated excessive legislative power nor upset the constitutionally

mandated balance of powers among the coordinate Branches,” Id. Prior to Booker v. United States, 543 U.S. 220

(2005), the Sentencing Guidelines were mandatory, 18 U.S.C. 3553(b)(1)(2000 ed.). If the Sentencing Guidelines

called for imposition of a term of imprisonment, a sentencing court was bound to impose it, id.

United States v. Armstrong, 517 U.S. 456, 464 (1996); U.S. Const. Amend. V (“No person shall ... be deprived of

life, liberty, or property, without due process of law ...”); U.S. Const. Amend. XIV, §1 (“... [N]or shall any State ...

deny to any person within its jurisdiction the equal protection of the laws”).

The exercise of prosecutorial discretion on the basis of race offends equal protection, 517 U.S. at 464-65. In Armstrong,

the defendant sought discovery in order to determine whether racial factors influenced the decision of which crack

defendants should be tried in federal court and which should be left to the less severe jeopardy of state law. The Court

held that in order to be entitled to discovery, a defendant must show that similarly situated offenders of other races

were not prosecuted. Id.

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Mandatory Minimum Sentencing for Federal Sex Offenses: An Overview

situated, when the distinction is based on some constitutionally suspect classification such as race

or alternatively when the distinction has no rational basis.30 However, a defendant convicted of a

federal sex crime has no equal protection claim, simply because he might have been less severely

punished under state law or because he might have been charged with a less serious federal

offense.31

Equal protection also prohibits punishment, under a facially neutral statute, that is intended to

have an adverse impact on a constitutionally protected class.32 Yet, the presence of a rational basis

for a classification will belie an intent to adversely impact. Thus, Native Americans, who may be

more likely to come within the reach of federal criminal laws applicable on federal lands, have no

equal protection claim as long as Congress had a rational basis for enacting such laws.33

Recidivism, Ex Post Facto and Double Jeopardy

Defendants whose prior convictions trigger a mandatory minimum sentencing requirement have

occasionally objected on double jeopardy or ex post facto grounds. Double jeopardy bans trying

or punishing a defendant twice for the same offense.34 Ex post facto bars retroactive criminal

statutes.35 More precisely, the double jeopardy clause “protects against successive prosecutions

for the same offense after acquittal or conviction and against multiple criminal punishments for

the same offense.”36 The ex post facto clauses, on the other hand, preclude laws that

Cf., Id. at 464 (“One ... constraint, imposed by the equal protection component of the Due Process Clause of the Fifth

Amendment ... is that the decision whether to prosecute may not be based on ‘an unjustifiable standard such as race,

religion, or other arbitrary classification’”); see also, Heller v. Doe, 509 U.S. 312, 320 (1993).

United States v. Brucker, 646 F.3d 1012, 1018 (7th Cir. 2011)(“That the federal defendant may face harsher

punishment than his state counterpart, or vice verse, simply does not raise equal protection concerns”); United States v.

Hughes, 632 F.3d 956, 961 (6th Cir. 2011)(“Hughes points to several defendants who committed acts very similar to

his—that is, they used the Internet to chat with undercover law enforcement officers masquerading as young girls,

arranged meetings for the express purpose of sexual activity and were subsequently arrested and convicted. However,

these defendants were not subject to the ten-year minimum sentence of §2422(b) because they were instead convicted

under 18 U.S.C. §2423(b).... Section 2422 (b) essentially requires proof that the defendant attempted to communicate

with the minor, and through that communication transform the minor into his victim. Section 2423(b) does not. The

distinction is a rational basis on which Congress could have decided to punish the crimes differently”); United States v.

Nagel, 559 F.3d 756, 760 (7th Cir. 2009)(“Defendant’s equal protection argument fails because criminal defendants

who violate §2422(b) are not similarly situated for sentencing purposes with criminal defendants who violate the

controlled substance offenses enumerated in §3553(f)”).

Cf., United States v. Bass, 536 U.S. 862, 863 (2002)(“[A] defendant who seeks discovery of an [equal protection]

claim of selective prosecution must show some evidence of both discriminatory effect and discriminatory intent”).

United States v. DeMarce, 564 F.3d 989, 1000 (8th Cir. 2009)(“DeMarce argues that federal sexual abuse

prosecutions have a disparate impact on Indians.... Congress intended to target sex offenders. The court concludes that

the penalties associated with the Act serve the purpose of deterring sex offenders and are a rationally related to

Congress’s objective to protect children. See generally United States v. Lemay, 260 F.3d 1018, 1030 (9th Cir.

2001)(denying that changes to the Federal Rules of Evidence violated the equal protection rights of a Native American

defendant); United States v. McHorse, 179 F.3d 889, 897 (10th Cir. 1999)(rejecting defendant’s argument that federal

sex crime prosecutions violated equal protection by disproportionately targeting Native Americans”).

“... [N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb....” U.S. Const.

Amend.V; the double jeopardy clause is binding on the states through the due process clause of the Fourteenth

Amendment, Monge v. California, 524 U.S. 721, 727 (1998).

“No ... ex post facto law shall be passed....” U.S. Const. Art.I, §9. “No state shall ... pass any ... ex post facto law ...”

U.S. Const. Art.I, §10.

Monge v. California, 524 U.S. at 727-28.

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Mandatory Minimum Sentencing for Federal Sex Offenses: An Overview

“retroactively alter the definition of crimes or [retroactively] increase the punishment for criminal

acts.”37

As the Supreme Court explained when it rejected the double jeopardy challenge to the California

“three strikes” statute:

Historically, we have found double jeopardy protections inapplicable to sentencing

proceedings, because the determinations at issue do not place a defendant in jeopardy for an

“offense,” see e.g., Nichols v. United States, 511 U.S. 738, 747 (1994)(noting that repeatoffender laws “penaliz[e] only the last offense committed by the defendant”). Nor have

sentence enhancements been construed as additional punishment for the previous offense;

rather, they act to increase a sentence “because of the manner in which [the defendant]

committed the crime of conviction.” An enhanced sentence imposed on a persistent offender

thus “is not to be viewed as either a new jeopardy or additional penalty for the earlier

crimes” but as “a stiffened penalty for the latest crime which is considered to be an

aggravated offense because a repetitive one.” Monge v. California, 524 U.S. at 728 (some

citations omitted).38

Courts confronted with ex post facto challenges to recidivist statutes have similarly focused upon

the “latest crime” and not upon the first.39

Federal Enclaves and Prisons

Most of the mandatory minimum penalties for federal sex offenses appear in one of three chapters

of title 18 of the United States Code. Chapter 109A outlaws rape and other forms of sexual abuse

and sexual contact when committed in federal enclaves or federal prisons. Chapter 110 outlaws

child pornography. Chapter 117 outlaws sexual activities that have travel or commercial

attributes.

Chapter 109A reaches a relatively wide range of sexual misconduct under relatively narrow

jurisdiction circumstances. It applies in the special maritime and territorial jurisdiction of the

United States. It applies as well in federal prisons and other institutions where individuals are

held in federal custody by contract or agreement with federal authorities, regardless of whether

they are located within the territorial jurisdiction of the United States.40

California Dept. of Corrections v. Morales, 514 U.S. 499, 504 (1995).

See also, Witte v. United States, 515 U.S. 389, 400 (1995)(“In repeatedly upholding such recidivism statutes, we

have rejected double jeopardy challenges because the enhanced punishment imposed for the later offense is not to be

viewed as either a new jeopardy or additional penalty for the earlier crimes, but instead as a stiffened penalty for the

latest crime, which is considered to an aggravated offense because as repetitive one”); United States v. Smith, 581 F.3d

692, 695 (8th Cir. 2009).

Gryger v. Burke, 334 U.S. 728, 732 (1948)(“Nor do we think the fact that one of the convictions that entered into the

calculations by which petitioner became a fourth offender occurred before the Act was passed, makes the Act invalidly

retroactive....”); United States v. Abraham, 386 F.3d 1033, 1038 (11th Cir. 2004); United States v. Springfiled, 337 F.3d

1175, 1178 (10th Cir. 2003).

See, e.g., 18 U.S.C. 2241(a)(“Whoever, in the special maritime and territorial jurisdiction of the United States or in a

Federal prison, or in any prison, institution, or facility in which persons are held in custody by direction of or pursuant

to a contract or agreement with the head of any Federal department or agency, knowingly causes another person to

engage in a sexual act ...”); a similar jurisdiction phrase occurs in each of chapter 109A’s criminal provisions, 18

U.S.C. 2241(b), (c); 2242; 2243; 2244.

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Within the United States, the “territorial jurisdiction of the United States” refers to those areas

over which Congress enjoys state-like legislative jurisdiction.41 It includes some, or parts of

some, military installations, Indian reservations, national parks, and national forests.42 Outside of

the United States, it includes overseas federal facilities and residences with respect to offenses

committed by or against U.S. nationals.43 Felonies proscribed when committed within the

territorial jurisdiction of the United States are also proscribed when committed outside the United

States by members of the Armed Forces, or employees of the Armed Forces, or those

accompanying the Armed Forces.44

The “maritime jurisdiction of the United States” includes vessels of U.S. registry, vessels owned

by Americans, and vessels scheduled to arrive in, or depart from, the United States with respect to

crimes committed by or against a U.S. national.45

Prosecution of the mandatory minimum offenses of chapter 109A and each of the other

mandatory minimum federal sex offenses may begin at anytime.46 There is no applicable statute

of limitations, although in rare instances due process may preclude prosecution of a stale

complaint.47

Chapter 109A Offenses

Chapter 109A violations trigger mandatory minimum sentencing provisions when:

•

the offender commits or attempts to commit a sexual act by force or threat or by

rendering the victim unconscious or intoxicated (aggravated sexual abuse);48

•

a sexual act is committed against a minor under the age of 12, or under the age of

16, if is there is disparity of 4 years or more between the age of the victim and

the age of the offender (aggravated sexual abuse of a child);49

18 U.S.C. 7(3).

Jurisdiction Over Federal Areas Within the States: Report of the Interdepartmental Committee for the Study of

Jurisdiction Over Federal Areas Within the States (April 1956).

18 U.S.C. 7(9).

18 U.S.C. 3261-3267. Those employed by or accompanying the federal government are also subject to criminal

liability for misconduct that would constitute a violation of chapter 77 (relating to peonage, slavery, and trafficking in

persons) or chapter 117 (relating to transportation for illegal sexual purposes) if committed within the territorial

jurisdiction of the United States, 18 U.S.C. 3271-3272.

18 U.S.C. 7(1), (2), (8). There is jurisdiction with respect to misconduct aboard an aircraft under comparable

circumstances, 18 U.S.C. 7(5); 49 U.S.C. 46506.

18 U.S.C. 3299 (“Notwithstanding any other law, an indictment may be found or an information instituted at any

time without limitation for any offense under section 1201 involving a minor victim, and for any felony under chapter

109A, 110 (except for section 2257 and 2257A), or 117, or section 1591”).

United States v. Gouveia, 467 U.S. 180, 192 (1984), citing United States v. Marion, 404 U.S. 307, 322-24 (1971),

and United States v. Lovasco, 431 U.S. 783, 788-90 (1977)(“[A]pplicable statutes of limitations protect against the

prosecution’s bringing stale criminal charges against any defendant, and, beyond that protection, the Fifth Amendment

requires the dismissal of an indictment, even if it is brought within the statute of limitations, if the defendant can prove

that the Government’s delay in bringing the indictment was a deliberate device to gain an advantage over him and that

it caused him actual prejudice in presenting his defense ”).

18 U.S.C. 2241(a), (b).

18 U.S.C. 2241(c).

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•

the offender commits or attempts to commit a sexual act by threat or when the

victim is incapacitated (sexual abuse);50

•

had the sexual contact been a sexual act, it would have been punishable as sexual

abuse or aggravated sexual abuse (abusive sexual contact);51 or

•

the offense is a federal sex offense, including an offense subject to a mandatory

minimum sentence, committed against a minor by an offender with a prior state

or federal conviction for a sex offense committed against a minor (repeated

sexual offense).52

Definitions

Chapter 109A offenses each involve some form of “sexual act” or “sexual contact.” The term

“sexual act” includes oral sexual activity as well as sexual penetration by sex organ, foreign

object, or digitally.53 It also covers touching the genitalia of a child under the age of 16 for

purposes of humiliation or sexual gratification.54 The term “sexual contact” includes touching any

of the sexually sensitive areas of the body of another for purposes of humiliation or sexual

gratification.55

Aggravated Sexual Abuse

Section 2241 of chapter 109A proscribes two types of aggravated sexual abuse, each punishable

by a mandatory minimum term of imprisonment. First, under the prison and territorial conditions

noted above, subsections 2241(a) and (b) outlaw causing, or attempting to cause, another person

to engage in a sexual act, when it is accomplished by force, threat, rendering the victim

unconscious, or by substantially incapacitating the victim using drugs or intoxicants.56 Such

18 U.S.C. 2242. There is considerable overlap between section 2242 and subsection 2241(a) as well as subsection

2241(b).

18 U.S.C. 2244(b).

18 U.S.C. 3559(e).

18 U.S.C. 2246 (“As used in this chapter ... (2) the term ‘sexual act’ means - (A) contact between the penis and the

vulva or the penis and the anus, and for purposes of this subparagraph contact involving the penis occurs upon

penetration, however slight; (B) contact between the mouth and the penis, the mouth and the vulva, or the mouth and

the anus; (C) the penetration, however slight, of the anal or genital opening of another by a hand or finger or by any

object, with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person ...”).

18 U.S.C. 2246 (“As used in this chapter ... (2) the term ‘sexual act’ means ... (D) the intentional touching, not

through the clothing, of the genitalia of another person who has not attained the age of 16 years with an intent to abuse,

humiliate, harass, degrade, or arouse or gratify the sexual desire of any person”).

18 U.S.C. 2246 (“As used in this chapter . . (3) the term ‘sexual contact’ means the intentional touching, either

directly or through the clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks of any person with an

intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person”).

18 U.S.C. 2241(“(a) By Force or Threat.—Whoever ... knowingly causes another person to engage in a sexual act (1)

by using force against that other person; or (2) by threatening or placing that other person in fear that any person will be

subjected to death, serious bodily injury, or kidnapping; or attempts to do so, shall be fined under this title, imprisoned

for any term of years or life, or both. (b) By Other Means.—Whoever ... knowingly - (1) renders another person

unconscious and thereby engages in a sexual act with that other person; or (2) administers to another person by force or

threat of force, or without the knowledge or permission of that person, a drug, intoxicant, or other similar substance and

thereby - (A) substantially impairs the ability of that other person to appraise or control conduct; and (B) engages in a

sexual act with that other person; or attempts to do so, shall be fined under this title, imprisoned for any term of years

or life, or both ...”).

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misconduct is punishable by fine, or by imprisonment for any term of years or for life, or by both

a fine and imprisonment, regardless of the age of the victim.57

Second, under prison and territorial conditions or when the offender crosses a state border with

intent to commit the offense, subsection 2241(c) criminalizes engaging or attempting to engage in

a sexual act with a child under 12 years of age (or under 16 years of age, if the offender is 4 years

or more the victim’s senior).58 The offense is punishable by imprisonment for not less than 30

years or for life.59 The mandatory minimum sentencing requirement cannot be overcome by the

general sentencing instruction in 18 U.S.C. 3553(a) that a sentence imposed should be no greater

than necessary to serve the sentencing purposes identified in that section.60 The offense is

punishable by life imprisonment, if the offender has a prior comparable federal or state

conviction.61

A defendant may be guilty of an attempted violation of subsection 2241(a), (b), or (c), when he

intends to commit the offense and takes a substantial step towards its completion.62 The

prosecution under subsection 2241(c) need not show that the defendant knew that the victim was

under 12 years of age,63 and the greater protection afforded victims under the age of 12 offends

neither the equal protection nor due process clauses of the Constitution.64 The courts have held

that a 30-year mandatory minimum sentence for violation of subsection 2241(c) is not so

disproportionate as to constitute unconstitutional cruel and unusual punishment,65 nor does its

imposition upon Native Americans violate the equal protection clause.66 Although abusive sexual

contact is a lesser included offense of aggravated sexual abuse, both may be prosecuted without

offending the double jeopardy clause, when they involve distinct criminal acts, even if occurring

in the same criminal episode.67

Id. Federal crimes punishable by a maximum term of imprisonment of 1 year or more are classified as felonies, 18

U.S.C. 3559(a). Absent a specific countervailing provision, defendants convicted of a felony are subject to a fine of not

more than $250,000 (not more than $500,000 for an organization), 18 U.S.C. 3571.

United States v. White Bull, 646 F.3d 1082, 1087 (8th Cir. 2011).

18 U.S.C. 2241(c)(“Whoever ... knowingly engages in a sexual act with another person who has not attained the age

of 12 years, or knowingly engages in a sexual act under the circumstances described in subsections (a) and (b) with

another person who has attained the age of 12 years but has not attained the age of 16 years (and is at least 4 years

younger than the person so engaging), or attempts to do so, shall be fined under this title and imprisoned for not less

than 30 years or for life. If the defendant has previously been convicted of another Federal offense under this

subsection, or of a State offense that would have been an offense under either such provision had the offense occurred

in a Federal prison, unless the death penalty is imposed, the defendant shall be sentenced to life in prison”).

United States v. DeCoteau, 630 F3d. 1091, 1097-98 (8th Cir. 2011).

18 U.S.C. 2241(c).

United States v. Robertson, 606 F.3d 943, 953 (8th Cir. 2010); United States v. DeMarce, 564 F.3d 989, 998 (8th Cir.

2009).

18 U.S.C. 2241(d).

United States v. Juvenile Male, 211 F.3d 1169, 1171-172 (9th Cir. 2000); United States v. Ransom, 942 F.2d 775,

776-78 (10th Cir. 1991).

United States v. Farley, 607 F.3d 1294, 1336-345 (11th Cir. 2010).

United States v. DeMarce, 564 F.3d 989, 1000 (8th Cir. 2009).

United States v. Robertson, 606 F.3d 943, 951 (8th Cir. 2010).

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Sexual Abuse

Section 2242 makes sexual abuse a federal crime when comparable jurisdiction conditions exist,

that is, when it is committed within the special maritime and territorial jurisdiction of the United

States or equivalent overseas locations or in a federal prison or other federal custodial

institution.68 Sexual abuse is punishable by a fine and a mandatory minimum term of

imprisonment for any term of years or for life, regardless of the age of the victim.69 The offense

may be committed by using or attempting to use threats to cause another to engage in a sexual act

or by engaging or attempting to engage in a sexual act with an incapacitated victim.70 A victim

who is asleep or incapacitated by intoxication is considered incapacitated for purposes of sexual

abuse.71 A victim with reduced mental capacity may also be considered more susceptible to

threats.72

Abusive Sexual Contact

Section 2244 proscribes abusive sexual contact, that is, engaging in sexual contact (touching)

under circumstances (threats, force, etc.) that would constitute abuse under section 2241 or 2242

had the contact been a sexual act (penetration).73 Abusive sexual contact is punishable by a fine

and a mandatory term of imprisonment for any term of years or for life when engaging in a sexual

act under similar circumstances would have violated subsection 2241(c)(victim under 12 or under

16 if the offender is more than 4 years the victim’s senior).74 Abusive sexual contact is not

otherwise punishable by a mandatory minimum term of imprisonment.75

Repeated Sex Offenses Against Children

A defendant, guilty of a “federal sex offense” against a child and previously convicted of a federal

or state felonious sex offense committed against a child, must be sentenced to life imprisonment

18 U.S.C. 2242, 7(9), 3261-3267.

18 U.S.C. 2242.

Id. (“Whoever, in the special maritime and territorial jurisdiction of the United States or in a Federal prison, or in any

prison, institution, or facility in which persons are held in custody by direction of or pursuant to a contract or agreement

with the head of any Federal department or agency, knowingly—(1) causes another person to engage in a sexual act by

threatening or placing that other person in fear (other than by threatening or placing that other person in fear that any

person will be subjected to death, serious bodily injury, or kidnapping); or (2) engages in a sexual act with another

person if that other person is—(A) incapable of appraising the nature of the conduct; or (B) physically incapable of

declining participation in, or communicating unwillingness to engage in, that sexual act; or attempts to do so, shall be

fined under this title and imprisoned for any term of years or for life”).

United States v. Papakee, 573 F.3d 569, 573-75 (intoxicated); United States v. Fasthorse, 639 F.3d 1182, 1184 (9th

Cir. 2011)(asleep), citing United States v. Smith, 606 F.3d 1270, 1281 (10th Cir. 2010), and United States v. Peters, 277

F.3d 963, 967-68 (7th Cir. 2002).

United States v. Betone, 636 F.3d 384, 387-88 (8th Cir. 2011).

18 U.S.C. 2244.

18 U.S.C. 2244(a)(5)(“Whoever, in the special maritime and territorial jurisdiction of the United States or in a

Federal prison, or in any prison, institution, or facility in which persons are held in custody by direction of or pursuant

to a contract or agreement with the head of any Federal department or agency, knowingly engages in or causes sexual

contact with or by another person, if so to do would violate ... (5) subsection (c) of section 2241 of this title had the

sexual contact been a sexual act, shall be fined under this title and imprisoned for any term of years or for life”).

18 U.S.C. 2244.

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under 18 U.S.C. 3559(e).76 A child for purposes of subsection 3559(e) is a minor under the age of

17.77 The federal predicate offenses for purposes of the subsection include both violations of

chapter 109A and similar federal and state offenses, that is, violations of “section 1591 (relating

to sex trafficking of children), 2241 (relating to aggravated sexual abuse), 2242 (relating to sexual

abuse), 2244(a)(1) (relating to abusive sexual contact), 2245 (relating to sexual abuse resulting in

death), 2251 (relating to sexual exploitation of children), 2251A (relating to selling or buying of

children), 2422(b) (relating to coercion and enticement of a minor into prostitution), 2423(a)

(relating to transportation of minors);” or any state equivalent felony.78

The defendant must also have been convicted and sentenced prior to the commission of the

second offense.79 An equivalent state offense qualifies as a subsection 3559(e) predicate when it

consists of conduct that would be a federal offense should it occur under one of two jurisdictional

circumstances—(1) the offense involves use of the mails or interstate commerce, or (2) the

offense occurs on a federal enclave, prison, or facility, or in Indian country.80 Although the

predicate state offense must be committed against a child, the victim’s status as a child need not

be an element of the state offense.81 Moreover, the state predicate offense need have no federal

nexus at the time of commission; it is enough that it would have been a federal offense under the

designated jurisdictional circumstances.82

A qualified defendant must be sentenced under subsection 3559(e), notwithstanding the fact that

he might otherwise have been sentenced under the less severe recidivist provisions of 18 U.S.C.

2551(e).83

Subsection 3559(e) provides defendants with a narrow affirmative defense when either the

offense of conviction or the predicate offense arises under subsection 2422(b)(relating to inducing

another to engage in prostitution) or under subsection 2423(a)(relating to transportation of a child

for illicit sexual purposes). To claim the benefits of the defense, an accused must show by clear

and convincing evidence that “(A) the sexual act or activity was consensual and not for the

purpose of commercial or pecuniary gain; (B) the sexual act or activity would not be punishable

The defendant may be sentenced to death, if convicted of a capital offense, 18 U.S.C. 3559(e)(1).

18 U.S.C. 3559(e)(2)(D); United States v. Doss, 630 F.3d 1181, 1195 (9th Cir. 2011).

18 U.S.C. 3559(e)(2)(A).

Id.

18 U.S.C. 3559(e)(2)(B)(“[T]he term ‘State sex offense’ means an offense under State law that is punishable by more

than one year in prison and consists of conduct that would be a Federal sex offense if, to the extent or in the manner

specified in the applicable provision of this title - (i) the offense involved interstate or foreign commerce, or the use of

the mails; or (ii) the conduct occurred in any commonwealth, territory, or possession of the United States, within the

special maritime and territorial jurisdiction of the United States, in a Federal prison, on any land or building owned by,

leased to, or otherwise used by or under the control of the Government of the United States, or in the Indian country (as

defined in section 1151)”).

United States v. Doss, 630 F.3d 1181, 1197 (9th Cir. 2011).

United States v. Gallenardo, 579 F.3d 1076, 1085-86 (9th Cir. 2009)(“Gallenardo contends that his prior state

conviction for felony sexual assault is not within 18 U.S.C. §3559(e)’s purview because his conduct did not involve

interstate or foreign commerce.... the plain and unambiguous language of 18 U.S.C. §3559(e) undermines Gallenardo’s

argument. Section 3559(e)(2)(B) provides that a state sex offense qualifies as a predicate offense if the conduct ‘would

be’ a Federal sex offense ‘if it had involved interstate or foreign commerce’ or ‘if it occurred within federal

jurisdiction’”); see also United States v. Rosenbohm, 564 F.3d 820, 823-25 (7th Cir. 2009).

United States v. Gallenardo, 579 F.3d 1076, 1083-85 (9th Cir. 2009); United States v. Moore, 567 F.3d 187, 190-91

(6 Cir. 2009).

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by more than one year in prison under the law of the State in which it occurred; or (C) no sexual

act or activity occurred.”84

Restitution

The victims of the sexual abuse and sexual contact offenses punishable by mandatory minimum

terms of imprisonment under chapter 109A are entitled to restitution.85 As a general rule, federal

courts may not order restitution absent express statutory authority.86 Congress, however, has

authorized the courts to order restitution for the victims of a wide range of federal crimes.87

Moreover, section 2248 of chapter 109A demands that victims be compensated for “full amount”

of the losses attributed to the offense, including an even more extensive array of expenses than

might be available under the general provisions.88 When the victim is a child, coverage extends to

costs incurred by a child’s parents “acting in their capacity as [such and] incurred as a result of

[the] offense.”89

Supervised Release

Federal courts may impose a term of supervised release at the time of sentencing.90 They will do

so in most serious sex offense cases.91 Supervised release is not unlike parole, except that

18 U.S.C. 3559(e)(3).

18 U.S.C. 2248 (“(a) In General. - Notwithstanding section 3663 or 3663A, and in addition to any other civil or

criminal penalty authorized by law, the court shall order restitution for any offense under this chapter.... (b) ... (2)

Enforcement. - An order of restitution under this section shall be issued and enforced in accordance with section 3664

in the same manner as an order under section 3663A ... (4) Order mandatory. - (A) The issuance of a restitution order

under this section is mandatory. (B) A court may not decline to issue an order under this section because of - (i) the

economic circumstances of the defendant; or (ii) the fact that a victim has, or is entitled to, receive compensation for his

or her injuries from the proceeds of insurance or any other source....”).

United States v. Tsosie, 639 F.3d 1213, 1219 (9th Cir. 2011); United States v. Locke, 643 F.3d 235, 246 (7th Cir.

2011); United States v. Yielding, 657 F.3d 688, 718 (8th Cir. 2011); United States v. Brown, 665 F.3d 1239, 1252 (11th

Cir. 2011).

18 U.S.C. 3663-3664. See generally, CRS Report RL34138, Restitution in Federal Criminal Cases, by (name re

dacted).

18 U.S.C. 2248(b)(3)(“For purposes of this subsection, the term ‘full amount of the victim’s losses’ includes any

costs incurred by the victim for - (A) medical services relating to physical, psychiatric, or psychological care; (B)

physical and occupational therapy or rehabilitation; (C) necessary transportation, temporary housing, and child care

expenses; (D) lost income; (E) attorneys’ fees, plus any costs incurred in obtaining a civil protection order; and (F) any

other losses suffered by the victim as a proximate result of the offense”).

18 U.S.C. 2248(c)(“For purposes of this section, the term ‘victim’ means the individual harmed as a result of a

commission of a crime under this chapter, including, in the case of a victim who is under 18 years of age, incompetent,

incapacitated, or deceased, the legal guardian of the victim or representative of the victim’s estate, another family

member, or any other person appointed as suitable by the court, but in no event shall the defendant be named as such

representative or guardian”); United States v. Tsosie, 639 F.3d at 1220 (“This definition is not a model of legislative

drafting. Nonetheless, it seems apparent enough that the purpose of the definition’s reference to ‘legal guardians’ is to

permit restitution of costs that legal guardians of minor victims, acting in their capacity as legal guardian, incurred as a

result of an offense”).

18 U.S.C. 3583(a)(emphasis added)(“The court, in imposing a sentence to a term of imprisonment for a felony or a

misdemeanor, may include as a part of the sentence a requirement that the defendant be placed on a term of supervised

release after imprisonment, except that the court shall include as a part of the sentence a requirement that the defendant

be placed on a term of supervised release if such a term is required by statute or if the defendant has been convicted for

the first time of a domestic violence crime as defined in section 3561(b)”). See generally, CRS Report RL31653,

Supervised Release: A Brief Sketch of Federal Law, by (name redacted), from which portions of this discussion are taken.

Prior to Booker v. United States, 543 U.S. 220 (2005), the Sentencing Guidelines were mandatory. Then, federal

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supervision is imposed in addition to, rather than in lieu of, time served in prison.92 For most

federal crimes, the maximum term of supervised release is no more than 5 years.93 For the

mandatory minimum sentencing offenses of chapter 109A and other serious federal sex offenses,

the term of supervised release is “any term of years not less than 5, or life.”94 The court may

sentence the offender to an additional term of imprisonment for failure to comply with the terms

imposed as a condition of supervised release.95

If the court elects to issue a supervised release order, the order must require offenders to (1)

refrain from criminal activity; (2) comply with sex offender registration requirements; (3)

cooperate with authorized collection of DNA samples; and (4) submit to periodic drug tests.96 The

court also enjoys the discretion to impose any condition that is reasonably related to the statutory

sentencing factors; that “involves no greater deprivation of liberty than is reasonably necessary”;

and that is consistent with the Sentencing Commission’s policy statements.97 The courts regularly

select conditions from among the Sentencing Guidelines’ collection of close to 30 “standard,”

“special,” or “additional” discretionary conditions in U.S.S.G. §5D1.3.98

(...continued)

courts had no alternative but to impose a term of supervised release following imposition of a mandatory minimum

term of imprisonment of one or more, U.S.S.G. §5D1.1(a)(eff. November 1, 2004). The Guidelines now merely

recommend supervised release in such cases, U.S.S.G. §5D1.1(a); United States v. O’Georgia, 569 F.3d 281, 288-89

(6th Cir. 2009). As the Supreme Court has made clear, Sentencing Guideline recommendations continue to carry great

weight, Gall v. United States, 552 U.S. 38, 46-52 (2007).

Id. See also, 18 U.S.C. 4205(a)(1982 ed.)(“Whenever confined and serving a definite term or terms of more than one

year, a prisoner shall be eligible for release on parole after serving one-third of such term or terms or after serving ten

years of a life sentence or of a sentence of over thirty years ...”). The Sentencing Reform Act abolished parole for

federal crimes committed after its effective date, P.L. 98-273, §218(a)(5), 98 Stat. 2027 (1984).

18 U.S.C. 3583(b).

18 U.S.C. 3583(k)(“ Notwithstanding subsection (b), the authorized term of supervised release for any offense under

section 1201 involving a minor victim, and for any offense under section 1591, 2241, 2242, 2243, 2244, 2245, 2250,

2251, 2251A, 2252, 2252A, 2260, 2421, 2422, 2423, or 2425, is any term of years not less than 5, or life”).

18 U.S.C. 3583(e)(“The court may ... (2) extend a term of supervised release if less than the maximum authorized

term was previously imposed, and may modify, reduce, or enlarge the conditions of supervised release, at any time

prior to the expiration or termination of the term of supervised release, pursuant to the provisions of the Federal Rules

of Criminal Procedure relating to the modification of probation and the provisions applicable to the initial setting of the

terms and conditions of post-release supervision; (3) revoke a term of supervised release, and require the defendant to

serve in prison all or part of the term of supervised release authorized by statute for the offense that resulted in such

term of supervised release without credit for time previously served on postrelease supervision, if the court, pursuant to

the Federal Rules of Criminal Procedure applicable to revocation of probation or supervised release, finds by a

preponderance of the evidence that the defendant violated a condition of supervised release ... ; or (4) order the

defendant to remain at his place of residence during nonworking hours and, if the court so directs, to have compliance

monitored by telephone or electronic signaling devices, except that an order under this paragraph may be imposed only

as an alternative to incarceration”). The term authorized by statute in the case of the mandatory minimum federal sex

offenses is any term of years or life, 18 U.S.C. 3583(k).

18 U.S.C. 3583(d). The order of supervised release need only include a registration condition when the offender is

otherwise required to register, id. Federal law requires any defendant convicted of any of the mandatory minimum sex

offenses to register, 42 U.S.C. 16913(a), 16911.

18 U.S.C. 3583(d).

E.g., U.S.S.G. §5D1.3(c), (d), (e)(“The following ‘standard’ conditions are recommended for supervised release ... :

(1) the defendant shall not leave the judicial district or other specified geographic area without the permission of the

court or probation officer; (2) the defendant shall report to the probation officer as directed by the court or probation

officer and shall submit a truthful and complete written report within the first five days of each month; ... (d) ... The

following ‘special’ conditions of supervised release are recommended in the circumstances described and, in addition,

may otherwise be appropriate in particular cases: (1) Possession of Weapons If the instant conviction is for a felony ... a

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The Sentencing Guidelines note that in sex offense cases “a condition[,] limiting the use of a

computer or an interactive computer service in cases in which the defendant used such items,”

may be appropriate.99 Nevertheless, the courts are divided over the extent to which a defendant’s

Internet use may be restricted in light of his conviction or past history.100

Sentencing courts may impose other supervisory release conditions as long as they satisfy the

same criteria as those listed in the Sentencing Guidelines’ collection: relatedness to statutory

sentencing factors; no greater deprivation of liberty than necessary; and consistency with the

Sentencing Guidelines’ policy statements.101 In case of sex offense convictions, the courts often

limit the defendant’s access to children following his release from prison. Some conditions

restrict access to children generally;102 some to areas frequented by children;103 and some to

occupations that involve frequent contact with children.104 Whether these conditions survive

review depends upon whether they are sufficiently related to the circumstances of the offense or

the offender; whether they are drawn with sufficient precision to avoid undue restrictions on the

(...continued)

condition prohibiting the defendant from possessing a firearm or other dangerous weapon. (2) Debt Obligations If an

installment schedule of payment of restitution or a fine is imposed—a condition prohibiting the defendant from

incurring new credit charges or opening additional lines of credit without approval of the probation officer unless the

defendant is in compliance with the payment schedule.... (7) Sex Offenses If the instant offense of conviction is a sex

offense ... (A) A condition requiring the defendant to participate in a program approved by the United States Probation

Office for the treatment and monitoring of sex offenders. (B) A condition limiting the use of a computer or an

interactive computer service in cases in which the defendant used such items ... (e) Additional Conditions ... The

following ‘special conditions’ may be appropriate on a case-by-case basis: ... (4) Occupational Restrictions

Occupational restrictions may be imposed as a condition of supervised release. See §5F1.5 (Occupational Restrictions)

...”).

U.S.S.G. §5D1.3(d)(7)(B).

100

United States v. Miller, 665 F.3d 114, 128-34 (5th Cir. 2011)(noting division among the circuits over whether

Internet use may be conditioned on probation officer approval; over whether restrictions were only appropriate when

use of the Internet was involved in commission of the offense; as well as over the permissible length and breadth of any

restriction).

101

18 U.S.C. 3583(d).

102

E.g., United States v. Smith, 655 F.3d 839, 843 (8th Cir. 2011)(“The defendant shall have no contact, nor reside with

children under the age of 18, including his/her own children, unless approved in advance by the U.S. Probation Officer

in consultation with the treatment providers. The defendant must report all incidental contact with children to the U.S.

Probation Officer and the treatment provider. Should the defendant have incidental contact with a child, the defendant

is required to immediately remove him/herself from the situation and notify his/her U.S. Probation Officer with[in] 24

hours of this contact”); United States v. Albertson, 645 F.3d 191, 194 (3d Cir. 2011)(comparable by permitting the

defendant contact with his own children or with any child in the presence of an adult).

103

E.g., United States v. Thompson, 653 F.3d 688, 692 (8th Cir. 2011)(“Special condition 9 prohibits Thompson from

‘access[ing] or com[ing] within 500 feet of schools, school yards, parks, arcades, playgrounds, amusement parks, or

other places used primarily by children under the ages of 18 unless approved in advance by the U.S. Probation

Officer”); United States v. Musso, 643 F.3d 566, 571 (7th Cir. 2011)(The defendant must “refrain from frequenting,

loitering, or residing within 500 feet of locations where children congregate”); United States v. Blinkinsop, 606 F.3d

1110, 1119-120 (9th Cir. 2010)(“Defendant shall not go to or loiter near schoolyards, parks, play grounds, arcades, or

other p[l]aces primarily used by children under the age of 18”).

104

E.g., United States v. Smith, 655 F.3d at 844 (“The defendant shall not be employed in, or participate in, any

volunteer activity that involves contact with children under the age of 18, except under circumstances approved in

advance by the U.S. Probation Officer”); United States v. Mike, 632 F.3d 686, 691 (10th Cir. 2011)(“[T]he defendant

may not engage in an occupation where he has access to children without prior approval from his probation officer”);

United States v. Heckman, 592 F.3d 400, 411 (3d Cir. 2010)(“The defendant shall not obtain employment or perform

volunteer work which includes, as part of his job/work description, contact with minor children”).

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defendant’s liberty; and whether they are compatible with the policies of the Sentencing

Guidelines.105

Travel and Commerce

Several mandatory minimum sentencing statutes punish sexual misconduct based on Congress’s

legislative authority to regulate interstate and foreign commerce. Most are found in chapter 117

(relating to transportation for illegal sexual activity), but a few others appear in either chapter

109A (relating to sexual abuse) or chapter 77 (relating to peonage, slavery, and human

trafficking).

Chapter 117

Generally known as the Mann Act or the White Slave Act or the White Slave Traffic Act,106

chapter 117 has five sections that proscribe travel or the use of the facilities of interstate or

foreign commerce when they relate to sexual misconduct: (1) 18 U.S.C. 2421 that outlaws

transporting or attempting to transport another in interstate or foreign commerce for purpose of

prostitution or other illicit sexual activity; (2) 18 U.S.C. 2422 that outlaws either (a) enticing or

attempting to entice another to engage such travel for such a purpose or (b) using or attempting to

use the facilities of interstate commerce for such enticement of a minor for such purpose; (3) 18

U.S.C. 2423 that outlaws travel under various circumstances for illegal purposes; (4) 18 U.S.C.

2424 that outlaws false or incomplete filings relating to foreign nationals maintained in a house of

prostitution; and (5) 18 U.S.C. 2425 that outlaws the use of the facilities of interstate commerce

to communicate information relating to a juvenile for illicit sexual purposes. Sections 2422 and

2423 contain mandatory minimum sentencing provisions; the others do not.

105

United States v. Smith, 655 F.3d at 846-47 (“The record does not, however, support Condition 6. Condition 6, a

movement restriction, does not just ban loitering near protected places. Its ‘not ... come within’ language prohibits

Smith even from driving by schools, parks, or other places used primarily by children, on main thoroughfares to

legitimate activities.... Contrary to Smith’s argument, ‘no-contact’ special conditions may be appropriate for other than

child pornography convictions. Because Smith sexually abused a minor, and the probation officer may waive the

condition, the district court acted within its discretion”); United States v. Albertson, 645 F.3d at 200 (“Albertson claims

there is no support in the record for imposing a prohibition on associating with minors under age 18 (except his

family).... At the time of his sentencing, Albertson had been charged with, among other things, indecent assault of his

then-13-or 14-year-old step-daughter, and has since been convicted of that crime. There is thus ample support in the

record for this condition”); United States v. Mike, 632 F.3d at 692 (“First, [the conditions] must be reasonably related to

at least one of the following: the nature and circumstances of the offense, the defendant’s history and characteristics,

the deterrence of criminal conduct, the protection of the public from further crimes of the defendant, and the

defendant’s educational, vocational, medical, or other correction needs. Second they must involve no greater

deprivation of liberty that is reasonably necessary to achieve the purpose of deterring criminal activity, protecting the

public, and promoting the defendant’s rehabilitation. Third, they must be consistent with any pertinent policy

statements issued by the Sentencing Commission”).

106

See, e.g., Hamilton, The “Licentiousness” in Religious Organizations and Why It Is Not Protected Under Religious

Liberty Constitutional Provisions, 18 WILLIAM & MARY BILL OF RIGHTS JOURNAL 953, 969 n.72 (2010); Dubler,

Immoral Purposes: Marriage and the Genus of Illicit Sex, 115 YALE LAW JOURNAL 756,761 (2005); Friedman, Name

Robbers: Privacy, Blackmail, and Assorted Matters in Legal History, 30 HOFSTRA LAW REVIEW 1093, 1118 (2002).

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Coercion and Enticement

Subsection 2422(b) requires imposition of a fine and a mandatory minimum term of

imprisonment of 10 years for using the facilities of interstate commerce to coerce or entice a child

under 18 years of age to engage in prostitution or other illicit sexual activity.107 Subsection

2422(a) punishes such misconduct involving an adult victim with imprisonment for not more than

20 years with no minimum sentence required.

Coercion or enticement in violation of subsection 2422(b) consists of “(1) use of a facility of

interstate commerce (2) to knowingly persuade, induce, entire, or coerce (3) an individual under

the age of 18 (4) to engage in illegal sexual activity.”108 The subsection also proscribes any

attempt to engage in such conduct.109 Conviction for attempt requires proof of an intent to violate

the subsection and of a substantial step beyond mere preparation towards accomplishment of that

intent.110 The intent required is the intent to entice or coerce—not the intent to engage in the illicit

sexual act.111 The effort to entice need not be addressed to a child directly; culpability may result

from efforts to entice through an adult intermediary.112 An offender who is misled as to the

existence of an actual child victim is no less culpable.113

Convictions under subsection 2422(b) have withstood a number of constitutional challenges.

Defendants have generally been unable establish that they have been exposed to grossly

disproportionate sentences in violation of the Eighth Amendment;114 or suffered a Fifth

Amendment deprivation of due process in the form of entrapment,115 the loss of judicial

107

18 U.S.C. 2422(b)(“Whoever, using the mail or any facility or means of interstate or foreign commerce, or within

the special maritime and territorial jurisdiction of the United States knowingly persuades, induces, entices, or coerces

any individual who has not attained the age of 18 years, to engage in prostitution or any sexual activity for which any

person can be charged with a criminal offense, or attempts to do so, shall be fined under this title and imprisoned not

less than 10 years or for life”) (Note that the subsection proscribes the same conduct when committed within the special

maritime and territorial jurisdiction of the United States).

108

United States v. Berk, 652 F.3d 132, 138 (1st Cir. 2011), citing in accord United States v. Cochran, 534 F.3d 631,

633 (7th Cir. 2008); United States v. Thomas, 410 F.3d 1235, 1245 (10th Cir. 2005); United States v. Brand, 467 F.3d

179, 201-02 (2d Cir. 2006); and United States v. Meek, 366 F.3d 705, 718 (9th Cir. 2004); see also United States v.

Young, 613 F.3d 735, 742 (8th Cir. 2010).

109

United States v. Berk, 652 F.3d 132, 140 (1st Cir. 2011); United States v. Chambers, 642 F.3d 588, 592 (7th Cir.

2011); United States v. Lanzon, 639 F.3d 1293, 1299 (11th Cir. 2011); United States v. Hart, 635 F.3d 850, 855 (6th Cir.

2011); United States v. Douglas, 626 F.3d 161, 164 (2d Cir. 2010).

110

United States v. Berk, 652 F.3d 132, 140 (1st Cir. 2011); United States v. Chambers, 642 F.3d 588, 592 (7th Cir.

2011); United States v. Lanzon, 639 F.3d 1293, 1299 (11th Cir. 2011); United States v. Douglas, 626 F.3d 161, 164 (2d

Cir. 2010); United States v. Hofus, 598 F.3d 1171, 1174 (9th Cir. 2010).

111

United States v. Berk, 652 F.3d 132, 140 (1st Cir. 2011)(“Section 2422(b) criminalizes an intentional attempt to

achieve a mental state—a minor’s assent—regardless of the accused’s intentions vis-a-vis the actual consummation of

sexual activities with the minor”); see also United States v. Berg, 640 F.3d 239, 252 (7th Cir. 2011), citing in accord

United States v. Lee, 603 F.3d 904, 914 (11th Cir. 2010); United States v. Brand, 467 F.3d 179, 202 (2d Cir. 2006);

United States v. Thomas, 410 F.3d 1235, 1244 (10th Cir. 2005); and United States v. Patten, 397 F.3d 1100, 1103 (8th

Cir. 2005).

112

United States v. Berk, 652 F.3d 132, 140 (1st Cir. 2011); United States v. Lanzon, 639 F.3d 1293, 1299 (11th Cir.

2011); United States v. Douglas, 626 F.3d 161, 164 (2d Cir. 2010); United States v. Nestor, 574 F.3d 159, 160-62 (3d

Cir. 2009).

113

United States v. Lanzon, 639 F.3d 1293, 1299 (11th Cir. 2011)(“[A]n actual minor victim is not required for an

attempt conviction under §2422(b)”); see also, United States v. Nestor, 574 F.3d 159, 161 (3d Cir. 2009).

114

United States v. Brucker, 646 F.3d 1012, 1018-19 (7th Cir. 2011); United States v. Hart, 635 F.3d 850, 858-59 (6th

Cir. 2011); United States v. Farley, 607 F.3d 1294, 1336-345 (11th Cir. 2010).

115

United States v. Orr, 622 F.3d 864, 868-70 (7th Cir. 2010); United States v. Young, 613 F.3d 735, 746-48 (8th Cir.

(continued...)

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sentencing discretion,116 or the denial of equal protection;117 or lost First Amendment freedom by

exposure to vague and overbroad laws;118 or fallen victim to an constitutional violation of

separation of powers.119

Transportation of a Minor

Section 2423 establishes four sex-related travel offenses and condemns attempts or conspiracies

to commit them as well. Subsection 2423(a), which bans interstate or foreign transportation a

child under 18 years of age for criminal sexual purposes, carries a mandatory minimum sentence

of imprisonment of 10 years;120 the same mandatory minimum applies to attempts or conspiracies

to violate the subsection.121 The other three subsections—travel for illicit sexual purposes; travel

and illicit sexual conduct overseas; and facilitation of travel for illicit sexual purposes—punish

violations by imprisonment for not more than 30 years, with no minimum term of imprisonment

required.122

“To obtain a conviction under §2423(a), the government must prove beyond a reasonable doubt

that the defendant: (1) knowingly transported a minor across state lines, (2) with the intent to

engage in sexual activity with the minor, and (3) that the minor was under eighteen at the time of

the offense.”123 The government need not show that the defendant knew the minor was

underage.124 Nor must it show that illicit sexual activity was the sole purpose or even the

dominant purpose for the travel, as long as it constituted a significant consideration.125

(...continued)

2010); United States v. Gagliardi, 506 F.3d 140, 149-50 (2d Cir. 2007).

116

United States v. Hart, 635 F.3d 850, 858 (6th Cir. 2011).

117

United States v. Brucker, 646 F.3d 1012, 1016-18 (7th Cir. 2011); United States v. Hughes, 632 F.3d 956, 960-61

(6 Cir. 2011).

118

United States v. Hart, 635 F.3d 850, 856-58 (6th Cir. 2011); United States v. Farley, 607 F.3d 1294, 1324 (11th Cir.

2010); United States v. Gagliardi, 506 F.3d 140, 149-50 (2d Cir. 2007); United States v. Gagliardi, 506 F.3d 140, 14547 (2d Cir. 2007).

119

United States v. Brucker, 646 F.3d 1012, 1016, 1019 (7th Cir. 2011)(“For in making the sentencing guidelines

advisory [in Booker], the Court did not authorize courts to sentence below the minimums proscribed not by the

guidelines but by constitutional federal statutes.... We have rejected separation of powers challenges to mandatory

minimum sentences, and we see no reason to revisit that holding here”); United States v. Hughes, 632 F.3d 956, 961

(6th Cir. 2011); United States v. Gagliardi, 506 F.3d 140, 148-49 (2d Cir. 2007).

120

18 U.S.C. 2423(a)(“A person who knowingly transports an individual who has not attained the age of 18 years in

interstate or foreign commerce, or in any commonwealth, territory or possession of the United States, with intent that

the individual engage in prostitution, or in any sexual activity for which any person can be charged with a criminal

offense, shall be fined under this title and imprisoned not less than 10 years or for life”).

121

18 U.S.C. 2423(e).

122

18 U.S.C. 2423(b), (c), and (d), respectively. Attempts or conspiracies to violate any of these are also punishable by

imprisonment for not more than 30 years, 18 U.S.C. 2423(e).

123

United States v. Broxmeyer, 616 F.3d 120, 128 (2d Cir. 2010); see also United States v. Bonty, 383 F.3d 575, 578

(7th Cir. 2004).

124

United States v. Daniels, 653 F.3d 399, 409-10 (6th Cir. 2011), citing in accord United States v. Cox, 577 F.3d 833,

838 (7th Cir. 2009); United States v. Jones, 471 F.3d 535, 539 (4th Cir. 2006); United States v. Griffith, 284 F.3d 338,

351 (2d Cir. 2002); and United States v. Taylor, 239 F.3d 994, 997 (9th Cir. 2001).

125

United States v. Hoffman, 626 F.3d 993, 996 (8th Cir. 2010)(“The illicit behavior must be one of the purposes

motivating ... the interstate transportation of the minor, but need not be the dominant purpose”); United States v. Bonty,

383 F.3d 575, 578 (7th Cir. 2004)(“The government need only prove that a significant or compelling purpose the trip—

not the dominant purpose—was to commit aggravated assault”); United States v. Hayward, 359 F.3d 631, 638 (3d Cir.

(continued...)

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Mandatory Minimum Sentencing for Federal Sex Offenses: An Overview

Travel to Sexually Abuse a Child

The Mann Act’s prohibitions on an offender’s travel for illicit sexual purposes carry no

mandatory minimum penalties. However, chapter 109A, which ordinarily deals with prison and

territorial offenses, provides for such a penalty. As noted earlier, subsection 2241(c) establishes a

mandatory minimum sentence of imprisonment of not less than 30 years for “[w]hoever crosses a

State line with intent to engage in a sexual act with a person who has not attained the age of 12

years ... or attempts to do so.”126 Recidivists face a mandatory term of life imprisonment.127

Subsection 2241(d) provides that the government need not establish that the defendant knew that

the victim was underage.128

Commercial Sex Trafficking of a Child or by Force

Section 1591 of chapter 77 establishes a pair of mandatory minimum sentencing provisions when

commercial sex trafficking occurs in or affecting interstate or foreign commerce or within the

special maritime or territorial jurisdiction of the United States. One outlaws sex trafficking; the

other profiting from it.129 In either case, violations are punishable by a fine and imprisonment for

not less than 10 years, if the child is between the ages of 14 and 18 and no force or coercion is

involved.130 Otherwise, violations are punishable by a fine and imprisonment for not less than 15

years.131

Parsed to their elements the two offenses provide:

(...continued)

2004)(“Hayward points to no case in which any Court of Appeals required a jury instruction that criminal sexual

activity must be the dominant purpose of interstate travel to support a conviction under 18 U.S.C. §2423(a). The

Government relies on decisions by the First, Second, Fifth, Sixth, Seventh, and Tenth Circuits, in which criminal sexual

activity was one of a number of multiple motives for interstate travel.... Similarly in this case, the District Court’s

charge that ‘a significant or motivating purpose of the travel across state or foreign boundaries was to have the

individual transported engage in illegal sexual activity. In other words, the illegal sexual activity must not have been

merely incidental to the trip’ was not in error”).

126

18 U.S.C. 2241(c)(“Whoever crosses a State line with intent to engage in a sexual act with a person who has not

attained the age of 12 years ... or attempts to do so, shall be fined under this title and imprisoned for not less than 30

years or for life. If the defendant has previously been convicted of another Federal offense under this subsection, or of a

State offense that would have been an offense under either such provision had the offense occurred in a Federal prison,

unless the death penalty is imposed, the defendant shall be sentenced to life in prison”); e.g., United States v. King, 604

F.3d 125, 146 (3d Cir. 2010)(uphold a conviction and 30-year sentence under the travel prong of subsection 2241(c));

United States v. Farley, 607 F.3d 1294, 1336-345 (11th Cir. 2010)(reversing a lower court ruling which had held the

mandatory minimum sentencing provision of subsection 2241(c) unconstitutionally disproportionate).

127

18 U.S.C. 2241(c).

128

18 U.S.C. 2241(d)(“In a prosecution under subsection (c) of this section, the Government need not prove that the

defendant knew that the other person engaging in the sexual act had not attained the age of 12 years”).

129

18 U.S.C. 1591(a)(1), (a)(2).

130

18 U.S.C. 1591(2)(“if the offense was not so effected, and the person recruited, enticed, harbored, transported,

provided, or obtained had attained the age of 14 years but had not attained the age of 18 years at the time of such

offense, by a fine under this title and imprisonment for not less than 10 years or for life”).

131

18 U.S.C. 1591(b)(1)(“[I]f the offense was effected by means of force, threats of force, fraud, or coercion described

in subsection (e)(2), or by any combination of such means, or if the person recruited, enticed, harbored, transported,

provided, or obtained had not attained the age of 14 years at the time of such offense, by a fine under this title and

imprisonment for any term of years not less than 15 or for life”).

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(1) Whoever

(2)(A) in or affecting interstate or foreign commerce, or

(B) within the special maritime and territorial jurisdiction of the United States,

(3) knowingly

(4)(A) recruits,

(B) entices,

(D) transports,

(E) provides,

(F) obtains, or

(G) maintains by any means

(5) a person;

(6)(A) knowing, or

(B)in reckless disregard of the fact,

(7) that (A) means of force,

(B) threats of force,

(D) coercion, or

(E) any combination of such means

(8)(A) will be used to cause the person to engage in a commercial sex act, or

(B)(i) that the person has not attained the age of 18 years and

(ii) will be caused to engage in a commercial sex act.... 132

II.

(1) Whoever

(2) knowingly

(3) benefits

(A) financially or

(B) by receiving anything of value,

(4) from participation in a venture in which

(A) a person was

(B)(i) recruited,

(ii) enticed,

(iii) harbored,

(iv) transported,

(v) provided,

(vi) obtained, or

(vii) maintained by any means

(C)(i) in or affecting interstate or foreign commerce, or

(ii) within the special maritime and territorial jurisdiction of the United States,

(5)(A) knowing, or

(B)in reckless disregard of the fact,

132

18 U.S.C. 1591(a)(1)(“Whoever knowingly - (1) in or affecting interstate or foreign commerce, or within the special

maritime and territorial jurisdiction of the United States, recruits, entices, harbors, transports, provides, obtains, or

maintains by any means a person ... knowing, or in reckless disregard of the fact, that means of force, threats of force,

fraud, coercion described in subsection (e)(2), or any combination of such means will be used to cause the person to

engage in a commercial sex act, or that the person has not attained the age of 18 years and will be caused to engage in a

commercial sex act, shall be punished as provided in subsection (b).

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(6) that (A) means of force,

(B) threats of force,

(D) coercion, or

(E) any combination of such means

(7)(A) will be used to cause the person to engage in a commercial sex act, or

(B)(i) that the person has not attained the age of 18 years and

(ii) will be caused to engage in a commercial sex act.... 133

The courts have held that the interstate commerce prong of the two offenses comes within the

reach of Congress’s authority to regulate interstate and foreign commerce.134 To pass muster, the

defendant’s misconduct must have at least some minimal effect on interstate or foreign

commerce.135 The prosecution, however, need not prove that the defendant knew that his activities

were occurring in or affecting commerce.136 Moreover, while as a general rule, the defendant

must be shown to have known that his juvenile victim was underage,137 the statute relieves the

government of the obligation, if the defendant has had sufficient opportunity to observe the

victim and thus presumably to discern the victim’s age.138

Murder in the Course of Certain Sexual Offenses

Section 2245 establishes a mandatory minimum sentence of imprisonment for any term of years

for murder committed during the course of a violation of sex trafficking (18 U.S.C. 1591), child

pornography (18 U.S.C. 2251, 2251A, 2260), or Mann Act violations (18 U.S.C. 18 U.S.C. 2421,

2422, 2423, 2425), regardless of the age of the victim.139 Other sections of the Code establish a

mandatory minimum term of life imprisonment for murder in the course of the other federal sex

offenses, that is, those committed while in federal custody or within the special maritime or

territorial jurisdiction of the United States.140 Section 2251 establishes a 30-year mandatory

133

18 U.S.C. 1591(a)(2)(“Whoever knowingly ... (2) benefits, financially or by receiving anything of value, from

participation in a venture which has engaged in an act described in violation of paragraph (1), knowing, or in reckless

disregard of the fact, that means of force, threats of force, fraud, coercion described in subsection (e)(2), or any

combination of such means will be used to cause the person to engage in a commercial sex act, or that the person has

not attained the age of 18 years and will be caused to engage in a commercial sex act, shall be punished as provided in

subsection (b)”).

134

United States v. Todd, 627 F.3d 329, 333 (9th Cir. 2010); United States v. Evans, 476 F.3d 1176, 1178-179 (11th Cir.

2007).

135

United States v. Anderson, 560 F.3d 275, 280 (5th Cir. 2009); United States v. Evans, 476 F.3d 1176, 1179-180 (11th

Cir. 2007).

136

United States v. Evans, 476 F.3d 1176, 1180 n.2 (11th Cir. 2007).

137

United States v. Brooks, 610 F.3d 1186, 1195 (9th Cir. 2010)(“§1591(a) plainly requires proof that the defendant

knew that the victim was under the age of eighteen years at the time of crime ...”).

138

18 U.S.C. 1591(c)(“In a prosecution under subsection (a)(1) in which the defendant had a reasonable opportunity to

observe the person so recruited, enticed, harbored, transported, provided, obtained or maintained, the Government need

not prove that the defendant knew that the person had not attained the age of 18 years”).

139

18 U.S.C. 2245 (“A person who, in the course of an offense under this chapter, or section 1591, 2251, 2251A, 2260,

2421, 2422, 2423, or 2425, murders an individual, shall be punished by death or imprisoned for any term of years or for

life”).

140

18 U.S.C. 1111 (murder within the special maritime and territorial jurisdiction of the United States), 1118 (murder

by federal prisoners).

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minimum term of imprisonment when the production of, attempted production of, or conspiracy

to produce, child pornography results in a death.141

Restitution and Supervised Release

Victims of sex trafficking are entitled to restitution under a specifically tailored provision

available for the benefit of any victim of a violation of chapter 77.142 The provision, section 1593,

is comparable in some respects to section 2248 that applies in enclave cases. It too incorporates

the compatible general restitution procedures.143 It uses essentially the same “legal guardian”

language.144 Thus, coverage presumably extends to parental costs incurred on behalf of a

victimized child.145 It calls for restitution in the full amount of the victim’s losses.146 It references

a similar list of specific qualifying expenses, but adds to the list the right to recover the value of

the services of the trafficked victim.147

The Mann Act contains no explicit restitution provision. Some offenders may also be guilty of sex

trafficking or some sex offense that triggers a crime-specific restitution requirement.148 If not, the

court must order offenders to pay victim restitution under the general restitution provisions of 18

U.S.C. 3663A.149

As in the case of chapter 109A, offenders convicted of Mann Act violations or sex trafficking

must be sentenced to a term of supervised release for “any term of years not less than 5, or

life.”150 The mandatory conditions for supervised release demand that the defendant: (1) comply

with sex offender registration requirements; (2) submit to collection of DNA samples; (3) agree to

141

18 U.S.C. 2251(e).

18 U.S.C. 1593(a)(mandatory restitution); e.g., United States v. Palmer, 643 F.3d 1060 (8th Cir. 2011).

143

18 U.S.C. 1593(b)(2)(“An order of restitution under this section shall be issued and enforced in accordance with

section 3664 in the same manner as an order under section 3663A”).

144

18 U.S.C. 1593(c)(“As used in this section, the term ‘victim’ means the individual harmed as a result of a crime

under this chapter, including, in the case of a victim who is under 18 years of age, incompetent, incapacitated, or

deceased, the legal guardian of the victim or a representative of the victim’s estate, or another family member, or any

other person appointed as suitable by the court, but in no event shall the defendant be named such representative or

guardian”).

145

Cf., United States v. Tsosie, 639 F.3d 1213, 1220 (9th Cir. 2011).

146

18 U.S.C. 1593(b)(1).

147

18 U.S.C. 1593(b)(3)(“As used in this subsection, the term ‘full amount of the victim’s losses’ has the same

meaning as provided in section 2259(b)(3) and shall in addition include the greater of the gross income or value to the

defendant of the victim’s services or labor or the value of the victim’s labor as guaranteed under the minimum wage

and overtime guarantees of the Fair Labor Standards Act (29 U.S.C. 201 et seq.)”); 18 U.S.C. 2259(b)(3)(“For purposes

of this subsection, the term ‘full amount of the victim’s losses’ includes any costs incurred by the victim for - (A)

medical services relating to physical, psychiatric, or psychological care; (B) physical and occupational therapy or

rehabilitation; (C) necessary transportation, temporary housing, and child care expenses; (D) lost income; (E) attorneys’

fees, as well as other costs incurred; and (F) any other losses suffered by the victim as a proximate result of the

offense”).

148

E.g., United States v. Doe, 488 F.3d 1154, 1156, 1159-162 (9th Cir. 2007)(ordering restitution under 18 U.S.C. 2259

(mandatory restitution in pornography cases) from a defendant convicted of engaging in sexual conduct with children

overseas in violation of 18 U.S.C. 2423(c) and of producing pornography overseas in violation of 18 U.S.C. 2251(c)).

149

Restitution is mandatory following conviction for a crime of violence, 18 U.S.C. 3663A(a)(1), (c)(1).

150

18 U.S.C. 3583(k)(“... [T]he authorized term of supervised release for any offense under section 1201 involving a

minor victim, and for any offense under section 1591, 2241, 2242, 2243, 2244, 2245, 2250, 2251, 2251A, 2252, 2252A,

2260, 2421, 2422, 2423, or 2425, is any term of years not less than 5, or life ...”).

142

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periodic drug testing; and (4) refrain from engaging in criminal activity.151 The court may impose

any discretionary conditions that relate to the statutory sentencing factors concerning the offense

or the offender; that are consistent with Sentencing Guidelines policies; and that do not unduly

restrict the defendant’s liberty.152 As noted earlier, the courts often condition a sex offender’s

supervised release on restricted use of the Internet and limited contact with children.153

Child Pornography

Four federal child pornography sections establish mandatory minimum terms of imprisonment for

violations: 18 U.S.C. 2251 (relating to sexual exploitation of children), 18 U.S.C. 2251A (relating

to selling or buying children), 18 U.S.C. 2252 (relating to certain activities relating to material

involving sexual exploitation of children), and 18 U.S.C. 2252A (relating to certain activities

relating to material constituting or containing child pornography).

Production of Child Pornography

Section 2251 creates a series of mandatory minimum terms of imprisonment for the production

of, attempted production of, and conspiracy to produce, child pornography or related misconduct

under various jurisdictional circumstances. First time offenders are punishable by a fine and

imprisonment for not less than 15 years; offenders with a prior conviction face a fine and

imprisonment for not less than 25 years; and offenders with 2 or more prior convictions must be

fined and sentenced to imprisonment for at least 35 years.154 Should a death result from the

commission of such offense, the offender must be imprisoned for at least 30 years.155

151

18 U.S.C. 3583(d). The order of supervised release need only include a registration condition when the offender is

otherwise required to register, id. Federal law requires any defendant convicted of any of the mandatory minimum sex

offenses to register, 42 U.S.C. 16913(a), 16911.

152

18 U.S.C. 3583(d).

153

E.g., United States v. Miller, 665 F.3d 114, 126 (5th Cir. 2011)(“The defendant shall not use any computer at any

location, whether or not at his place of employment, residence, or elsewhere, without the prior written permission of the

probation officer. The defendant shall not possess or use any phone or any other electronic device that allows access to

the internet without prior written permission from the probation officer”); United States v. Musso, 643 F.3d 566, (7th

Cir. 2011)(The conditions of release require “Musso to ... (3) refrain from frequenting, loitering, or residing within 500

feet of locations where children congregate, (4) have no supervised or unsupervised contact with any minor, and (5)

forego volunteer activities that might result in contact with minors”).

154

18 U.S.C. 2251(e)(“Any individual who violates, or attempts or conspires to violate, this section shall be fined under

this title and imprisoned not less than 15 years nor more than 30 years, but if such person has one prior conviction

under this chapter, section 1591, chapter 71, chapter 109A, or chapter 117, or under section 920 of title 10 (article 120

of the Uniform Code of Military Justice), or under the laws of any State relating to aggravated sexual abuse, sexual

abuse, abusive sexual contact involving a minor or ward, or sex trafficking of children, or the production, possession,

receipt, mailing, sale, distribution, shipment, or transportation of child pornography, such person shall be fined under

this title and imprisoned for not less than 25 years nor more than 50 years, but if such person has 2 or more prior

convictions under this chapter, chapter 71, chapter 109A, or chapter 117, or under section 920 of title 10 (article 120 of

the Uniform Code of Military Justice), or under the laws of any State relating to the sexual exploitation of children,

such person shall be fined under this title and imprisoned not less than 35 years nor more than life. Any organization

that violates, or attempts or conspires to violate, this section shall be fined under this title. Whoever, in the course of an

offense under this section, engages in conduct that results in the death of a person, shall be punished by death or

imprisoned for not less than 30 years or for life”).

155

Id.

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Section 2251 outlaws four substantive offenses: the use of a child to produce child pornography,

subsection 2251(a); the participation of a parent or other custodian of a child in such production,

subsection 2251(b); the overseas production of such material, subsection 2251(c); and the

advertising of such material, subsection 2251(d). Subsection 2251(e) applies the same penalties to

attempts or conspiracies to commit any of the four substantive offenses.

The elements common to all four are a child under 18 years of age156 and at least the goal of

creating a visual depiction of sexually explicit conduct of the child.157 A majority of courts have

held that neither the statute nor the Constitution requires the prosecution to show that the

defendant knew the child was underage and that mistake of age constitutes no defense.158

“Visual depiction” includes photographs, video, and computer disks.159 “Sexually explicit

conduct” is defined to encompass various sexual acts as well as “lascivious exhibition[s]” of an

individual’s pubic area.160 The lower federal appellate courts have endorsed the so-call Dost

factors as a guide to determine when the otherwise lawful depiction of nudity has become a

lascivious exhibition.161

Subsection 2251(a): Use of a Child to Produce

Subsection 2251(a) outlaws employment, use, or inducement of a child to produce a visual

depiction of sexually explicit conduct under a range of jurisdictional circumstances, or by virtue

of subsection (e) attempting or conspiring to do so.162 The jurisdictional circumstances include

156

18 U.S.C. 2256(1).

18 U.S.C. 2251(a), (b), (c), (d).

158

United States v. Fletcher, 634 F.3d 395, 400-405 (7th Cir. 2011); United States v. Heath, 624 F.3d 884, 886 (8th Cir.

2010); United States v. Humphrey, 608 F.3d 955, 957-62 (6th Cir. 2010); United States v. Malloy, 568 F.3d 166, 171

(4th Cir. 2009); United States v. Griffith, 284 F.3d 338, 349 (2d Cir. 2002); but see United States v. United States

District Court, 858 F.2d 534, 543 (9th Cir. 1988)(“A defendant may avoid conviction only showing, by clear and

convincing evidence, that he did not know, and could not reasonable have learned, that the actor or actress was under

18 years of age”).

159

18 U.S.C. 2256(5) ‘visual depiction’ includes undeveloped film and videotape, data stored on computer disk or by

electronic means which is capable of conversion into a visual image, and data which is capable of conversion into a

visual image that has been transmitted by any means, whether or not stored in a permanent format”).

160

18 U.SC. 2256(2)(A)(“Except as provided in subparagraph (B), ‘sexually explicit conduct’ means actual or

simulated - (i) sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between

persons of the same or opposite sex; (ii) bestiality; (iii) masturbation; (iv) sadistic or masochistic abuse; or (v)

lascivious exhibition of the genitals or pubic area of any person”).

161

United States v. Johnson, 639 F.3d 433, 439-40 (8th Cir. 2011)(“In determining whether images are “lascivious,” we

have referred to the criteria listed in United States v. Dost, 636 F.Supp. 828, 832 (S.D. Cal. 1986), aff’d sub nom.,

United States v. Wiegand, 812 F.2d 1239 (9th Cir. 1987). The factors in Dost included (1) whether the focal point of the

picture is on the minor’s genitals or pubic area; (2) whether the setting of the picture is sexually suggestive; (3) whether

the minor is depicted in unnatural poses or inappropriate attire considering the minor’s age; (4) whether the minor is

fully or partially clothed or is nude; (5) whether the picture suggests sexual coyness or a willingness to engage in sexual

activity; and (6) whether the image is intended to elicit a sexual response in the viewer.... However, while we consider

these criteria, they are ‘neither definitive nor exhaustive”); see also United States v. Steen, 634 F.3d 822, 826-27 (5th

Cir. 2011); United States v. Brown, 579 F.3d 672, 680-83 (6th Cir. 2009); United States v. Overton, 573 F.3d 679, 68690 (9th Cir. 2009); United States v. Rivera, 546 F.3d 245, 250 (2d Cir. 2008); United States v. Frabizio, 459 F.3d 80, 87

(1st Cir. 2006).

162

18 U.S.C. 2251(“(a) Any person who employs, uses, persuades, induces, entices, or coerces any minor to engage in,

or who has a minor assist any other person to engage in ... with the intent that such minor engage in, any sexually

explicit conduct for the purpose of producing any visual depiction of such conduct or for the purpose of transmitting a

(continued...)

157

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interstate or territorial transportation of the child, anticipated or actual transmission or

transportation of the depiction in or affecting interstate commerce, and use of materials

transported in interstate commerce.163 The courts have held that subsection 2251(a) constitutes a

valid exercise of Congress’s legislative power under the commerce clause.164 Moreover, they have

concluded that its mandatory minimum term of imprisonment does not offend the Eighth

Amendment’s prohibition against cruel and unusual punishments.165

Subsection 2251(b): Permitting the Use of a Child to Produce

Subsection 2251(b) applies the mandatory minimums of subsection 2251(e) to a parent, or other

custodian of a child under 18 years of age, who permits, attempts to permit, or conspires to permit

a child to be used for the visual depiction of sexually explicit conduct under jurisdictional

circumstances comparable to those that apply to subsection 2251(a).166 A related provision with a

(...continued)

live visual depiction of such conduct, shall be punished as provided under subsection (e), if such person knows or has

reason to know that such visual depiction will be transported or transmitted using any means or facility of interstate or

foreign commerce.... (e) Any individual who violates, or attempts or conspires to violate, this section shall....”); see,

e.g., United States v. Coutentos, 651 F.3d 809, 823 (8th Cir. 2011)(“To convict Coutentos of producing child

pornography under 18 U.S.C. §2251(a) and (d)(2000), the government must have established that (1) at a time when

K.C. or S.Z., or both, were under eighteen years of age; (2) Coutentos used, persuaded, or induced K.C. or S.Z., or

both, to engage in sexually explicit conduct; (3) Coutentos voluntarily and intentionally did this for the purpose of

producing at least one visual depiction of such conduct; and (4) at least one those depictions was produced using a

camera that had been shipped and transported in interstate or foreign commerce. See §2251(a). The elements are the

same to prove attempted sexual exploitation of a minor except that the attempt charge requires only that Coutentos

attempted to produce a visual depiction and that he carried out some act which was a substantial step toward that

production. See §2251”).

163

18 U.S.C. 2251(a)(“Any person who employs, uses, persuades, induces, entices, or coerces any minor to engage in,

or who has a minor assist any other person to engage in, or who transports any minor in or affecting interstate or

foreign commerce, or in any Territory or Possession of the United States, with the intent that such minor engage in, any

sexually explicit conduct for the purpose of producing any visual depiction of such conduct or for the purpose of

transmitting a live visual depiction of such conduct, shall be punished as provided under subsection (e), if such person

knows or has reason to know that such visual depiction will be transported or transmitted using any means or facility of

interstate or foreign commerce or in or affecting interstate or foreign commerce or mailed, if that visual depiction was

produced or transmitted using materials that have been mailed, shipped, or transported in or affecting interstate or

foreign commerce by any means, including by computer, or if such visual depiction has actually been transported or

transmitted using any means or facility of interstate or foreign commerce or in or affecting interstate or foreign

commerce or mailed”).

164

United States v. Culver, 598 F.3d 740, 746-47 (11th Cir. 2010); United States v. McCloud, 590 F.3d 560, 568 (8th

Cir. 2009); United States v. Malloy, 568 F.3d 166, 179-80 (4th Cir. 2009).

165

United States v. Malloy, 568 F.3d 166, 180 (4th Cir. 2009); United States v. Rivera, 546 F.3d 245, 254-55 (2d Cir.

2008); United States v. Polk, 546 F.3d 74, 74-8 (1st Cir. 2008); United States v. Paton, 535 F.3d 829, 837-38 (8th Cir.

2008).

166

18 U.S.C. 2251(b)(“Any parent, legal guardian, or person having custody or control of a minor who knowingly

permits such minor to engage in, or to assist any other person to engage in, sexually explicit conduct for the purpose of

producing any visual depiction of such conduct or for the purpose of transmitting a live visual depiction of such

conduct shall be punished as provided under subsection (e) of this section, if such parent, legal guardian, or person

knows or has reason to know that such visual depiction will be transported or transmitted using any means or facility of

interstate or foreign commerce or in or affecting interstate or foreign commerce or mailed, if that visual depiction was

produced or transmitted using materials that have been mailed, shipped, or transported in or affecting interstate or

foreign commerce by any means, including by computer, or if such visual depiction has actually been transported or

transmitted using any means or facility of interstate or foreign commerce or in or affecting interstate or foreign

commerce or mailed”); see, e.g., United States v. O’Connor, 650 F.3d 839, 857-58 (2d Cir. 2011); United States v.

Paige, 604 F.3d 1268, 1270 (11th Cir. 2010).

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more substantial mandatory minimum sentence of imprison appears in 18 U.S.C. 2251A and

differs primarily in its requirement of a transfer of custody or control.167

Subsection 2251(c): Overseas Production

Subsection 2251(c) applies the mandatory minimums of subsection 2251(e) to the overseas use,

attempted use, or conspiracy to use, a child in the visual depiction of sexually explicit conduct

with the intent to transport, or the transportation of, the depiction into the United States.168

Subsection 2251(d): Advertising

Subsection 2251(d) applies the mandatory minimums of subsection 2251(e) to anyone who

“knowingly makes, prints, or publishes, or causes to be made, printed, published any notice or

advertisement seeking or offering child pornography”169 or to anyone seeking or offering to

participate in the production of child pornography under various jurisdictional circumstances.170

Federal jurisdiction exists if the notice or advertisement is transported or transmitted using the

facilities of interstate commerce or the defendant anticipates that it will be.171 The notice or

advertisement need not “specifically state that it offers or seeks a visual depiction to violate

§2251(c)(1)(A);” all that is required is that its implications are clear.172

Selling or Buying Children for Pornographic Purposes

Section 2251A demands a mandatory minimum sentence of imprisonment of 30 years for those

convicted of relinquishing or acquiring custody or control of a child under 18 years of age

167

Section 2251A is discussed in a later section of this report.

18 U.S.C. 2251(c)(“(1) Any person who, in a circumstance described in paragraph (2), employs, uses, persuades,

induces, entices, or coerces any minor to engage in, or who has a minor assist any other person to engage in, any

sexually explicit conduct outside of the United States, its territories or possessions, for the purpose of producing any

visual depiction of such conduct, shall be punished as provided under subsection (e). (2) The circumstance referred to

in paragraph (1) is that - (A) the person intends such visual depiction to be transported to the United States, its

territories or possessions, by any means, including by using any means or facility of interstate or foreign commerce or

mail; or (B) the person transports such visual depiction to the United States, its territories or possessions, by any means,

including by using any means or facility of interstate or foreign commerce or mail”); see, e.g., United States v.

Deverso, 518 F.3d 1250, 1257 (11th Cir. 2008).

169

United States v. Rowe, 414 F.3d 271, 278 (2d Cir. 2005).

170

18 U.S.C. 2251(d)(“(1) Any person who, in a circumstance described in paragraph (2), knowingly makes, prints, or

publishes, or causes to be made, printed, or published, any notice or advertisement seeking or offering - (A) to receive,

exchange, buy, produce, display, distribute, or reproduce, any visual depiction, if the production of such visual

depiction involves the use of a minor engaging in sexually explicit conduct and such visual depiction is of such

conduct; or (B) participation in any act of sexually explicit conduct by or with any minor for the purpose of producing a

visual depiction of such conduct; shall be punished as provided under subsection (e)”).

171

18 U.S.C. 2251(d)(“... (2) The circumstance referred to in paragraph (1) is that - (A) such person knows or has

reason to know that such notice or advertisement will be transported using any means or facility of interstate or foreign

commerce or in or affecting interstate or foreign commerce by any means including by computer or mailed; or (B) such

notice or advertisement is transported using any means or facility of interstate or foreign commerce or in or affecting

interstate or foreign commerce by any means including by computer or mailed”).

172

United States v. Rowe, 414 F.3d 271, 277 (2d Cir. 2005).

168

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knowing or intending that the child will be used to produce visual depictions of sexually explicit

conduct, under certain jurisdictional circumstances.173

“Custody or control” is statutorily defined to “include[] temporary supervision over or

responsibility for a minor whether legally or illegally obtained.”174 “The statute does not require

transfer of full parental authority; something less than the control a parent exercises—including ...

limitations on time and scope—suffices to violate the law.”175 Moreover, “the terms contained in

the title of §2251A(b)—buying and selling—do not exclusively define the statute’s reach.”176 The

statute’s reach extends as well to instances where the defendant acquires custody or control of the

child by paying the victim herself.177

Federal jurisdiction over the offense exists if it occurred within the territorial jurisdiction of the

United States, if it involved travel in or affecting interstate commerce, or if the offer was

transported or transmitted through the facilities in or affecting interstate commerce.178

Certain Activities Involving Child Pornography (Real Child)

Three of the four offenses created in 18 U.S.C. 2252 require imposition of a sentence of

imprisonment for not less than 5 years: transportation, receipt, or possession with intent to sell, of

visual depictions of sexually explicit conduct involving a child under 18 years of age—under

various jurisdictional circumstances.179 Attempts or conspiracies to commit those offenses carry

173

18 U.S.C. 2251A(a)(“Any parent, legal guardian, or other person having custody or control of a minor who sells or

otherwise transfers custody or control of such minor, or offers to sell or otherwise transfer custody of such minor either

- (1) with knowledge that, as a consequence of the sale or transfer, the minor will be portrayed in a visual depiction

engaging in, or assisting another person to engage in, sexually explicit conduct; or (2) with intent to promote either (A) the engaging in of sexually explicit conduct by such minor for the purpose of producing any visual depiction of

such conduct; or (B) the rendering of assistance by the minor to any other person to engage in sexually explicit conduct

for the purpose of producing any visual depiction of such conduct; shall be punished by imprisonment for not less than

30 years or for life and by a fine under this title, if any of the circumstances described in subsection (c) of this section

exist”). Subsection 2251A(b) contains similar provisions and penalties relating to those who acquire or seek to acquire

custody or control of a child for purposes of producing child pornography.

174

18 U.S.C. 2256(7).

175

United States v. Block, 635 F.3d 721, 723 (5th Cir. 2011).

176

United States v. Buculei, 262 F.3d 322, 331 (4th Cir. 2001).

177

United States v. Frank, 599 F.3d 1221, 1234 (11th Cir. 2010)(“Frank argues that there was insufficient evidence that

he ‘purchas[ed] ... a minor,’ as required by 18 U.S.C. §2241A(b), because (1) the term ‘purchase’ requires that a

defendant purchase a minor from a third party, rather than from the minor herself; and (2) the phrase ‘purchase[] or

otherwise obtain[] custody or control’ requires that purchase must be a form of control, which Frank argues is only

achieved through ‘sexual slavery,’ such as forced prostitution or captivity for the purpose of producing child

pornography. We disagree”).

178

18 U.S.C. 2251A(c)(“the circumstances referred to in subsections (a) and (b) are that - (1) in the course of the

conduct described in such subsections the minor or the actor traveled in or was transported in or affecting interstate or

foreign commerce; (2) any offer described in such subsections was communicated or transported using any means or

facility of interstate or foreign commerce or in or affecting interstate or foreign commerce by any means including by

computer or mail; or (3) the conduct described in such subsections took place in any territory or possession of the

United States”).

179

18 U.S.C. 2252(a)(1), (2), (3). 18 U.S.C. 2252(b)(1)(“Whoever violates, or attempts or conspires to violate,

paragraph (1), (2), or (3) of subsection (a) shall be fined under this title and imprisoned not less than 5 years and not

more than 20 years, but if such person has a prior conviction under this chapter, section 1591, chapter 71, chapter

109A, or chapter 117, or under section 920 of title 10 (article 120 of the Uniform Code of Military Justice), or under

the laws of any State relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or

ward, or the production, possession, receipt, mailing, sale, distribution, shipment, or transportation of child

(continued...)

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the same mandatory minimum penalties.180 Simple possession by a first time offender is not

punishable by a mandatory minimum term of imprisonment.181 Defendants charged with any of

the four offenses, who have a prior similar conviction, face increased mandatory minimum

sentences of imprisonment.182

Transporting

The mandatory minimum sentences of subsection 2252(b)(1) apply to those convicted of

violating subsection 2252(a)(1) which outlaws the transportation or transmission of child

pornography in or affecting interstate commerce or by using the facilities of interstate

commerce.183 The mandatory minimum sentences apply as well to those convicted of attempting

or conspiring to violate the subsection.184

“Under Section 2252(a)(1), the government must prove that: (1) the defendant knowingly

transported or shipped, (2) in interstate or foreign commerce, (3) any visual depiction involving

the use of a minor engaging in sexually explicit conduct.”185 The government must also prove that

the visual depiction was of an actual child not a mere computer simulation,186 and that the

defendant knew the child was underage.187

Moreover, simply because the statute indicates that transportation may take the form of computer

transmission “does not mean that use of a computer is a required element of the crime.”188

For purposes of subsection 2252(a)(1), “interstate commerce” includes commerce to and from the

possessions and the territories of the United States, and “foreign commerce” includes travel

between foreign nations by way of the United States.189 The government, however, need not

(...continued)

pornography, or sex trafficking of children, such person shall be fined under this title and imprisoned for not less than

15 years nor more than 40 years”).

180

Id.

181

18 U.S.C. 2252(a)(4), (b)(2).

182

18 U.S.C. 2252(b)(1). 18 U.S.C. 2252(b)(2)(“Whoever violates, or attempts or conspires to violate, paragraph (4) of

subsection (a) shall be fined under this title or imprisoned not more than 10 years, or both, but if such person has a prior

conviction under this chapter, chapter 71, chapter 109A, or chapter 117, or under section 920 of title 10 (article 120 of

the Uniform Code of Military Justice), or under the laws of any State relating to aggravated sexual abuse, sexual abuse,

or abusive sexual conduct involving a minor or ward, or the production, possession, receipt, mailing, sale, distribution,

shipment, or transportation of child pornography, such person shall be fined under this title and imprisoned for not less

than 10 years nor more than 20 years”).

183

18 U.S.C. 2252(a)(“Any person who - (1) knowingly transports or ships using any means or facility of interstate or

foreign commerce or in or affecting interstate or foreign commerce by any means including by computer or mails, any

visual depiction, if - (A) the producing of such visual depiction involves the use of a minor engaging in sexually

explicit conduct; and (B) such visual depiction is of such conduct ... shall be punished as provided in subsection (b) of

this section”).

184

18 U.S.C. 2252(b)(1).

185

United States v. Chambers, 441 F.3d 438, 449 (6th Cir. 2006).

186

United States v. Sims, 428 F.3d 945, 957 (10th Cir. 2005).

187

United States v. X-Citment Video, Inc., 513 U.S. 64, 78 (1994).

188

United States v. Lewis, 605 F.3d 395, 403 (6th Cir. 2010).

189

United States v. Polanco, 451 F.3d 308, 310 (3d Cir. 2006).

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prove that the defendants know of the interstate or foreign commercial nature of the

transportation or shipment.190

When the government seeks the 15-year recidivist mandatory minimum sentence and the “state

law [upon which the prior conviction was based] covers conduct some of which is within, and the

rest of which is outside, the scope of a recidivist statute, the federal court may examine the [state]

charging papers (and any guilty-plea colloquy) to classify the conviction.”191

Receipt or Distribution

The same mandatory minimum terms of imprisonment apply when the defendant is convicted of

receipt or distribution of, attempted receipt or distribution of, or conspiracy to receive or

distribute, child pornography, under the same jurisdictional circumstances—not less than 15 years

with a prior conviction; not less than 5 years otherwise.192

“The elements of receipt under 18 U.S.C. 2252(a)(2) require the defendant to knowingly receive

an item of child pornography, and the item to be transported in interstate or foreign commerce” or

otherwise satisfy the subsection’s jurisdictional requirements.193

To be sure, the exact contours of the crime of “knowingly receiving” electronic child

pornography in a constantly shifting technological background are murky. Part of the

problem is that computers connected to the internet store vast quantities of data about which

many users know nothing. As a user browses the internet, the computer stores images and

text and other kinds of data in its temporary memory the way a ship passing through the

ocean collects barnacles that cling to its hull. Thus, there is some risk that the computer of an

internet user not intending to access child pornography may be infected with child

pornography. Understandably, our sister circuits have struggled with whether to impute

knowledge from the presence of illicit files found in such temporary storage.194

190

United States v. Chambers, 441 F.3d 438, 450 (6th Cir. 2006).

United States v. Osborne, 551 F.3d 718, 721 (7th Cir. 2009).

192

18 U.S.C. 2252(a)(“Any person who ... (2) knowingly receives, or distributes, any visual depiction using any means

or facility of interstate or foreign commerce or that has been mailed, or has been shipped or transported in or affecting

interstate or foreign commerce, or which contains materials which have been mailed or so shipped or transported, by

any means including by computer, or knowingly reproduces any visual depiction for distribution using any means or

facility of interstate or foreign commerce or in or affecting interstate or foreign commerce or through the mails, if - (A)

the producing of such visual depiction involves the use of a minor engaging in sexually explicit conduct; and (B) such

visual depiction is of such conduct ... shall be punished as provided in subsection (b) of this section”); 18 U.S.C.

2252(b)(1).

193

United States v. Schwarte, 645 F.3d 1022, 1032 (8th Cir. 2011). After the events in Schwarte occurred, Congress

expanded the subsection’s jurisdictional reach by adding transportation and transmissions “affecting interstate or

foreign commerce,” P.L. 110-358, 103(b), 122 Stat. 4003 (2008).

194

United States v. Winkler, 639 F.3d 692, 696 (5th Cir. 2011), citing inter alia, United States v. Dobbs, 629 F.3d 1199,

1201, 1207 (10th Cir. 2011)(emphasis in the original)(“[T]he lack of a search-and-creation pattern ... when combined

with the absence of any evidence establishing that the defendant ever saw the images, forefends any view that knowing

receipt could have been found by the jury”); United States v. Kuchinski, 469 F.3d 853, 861-62 (9th Cir. 2006)”Citing

the fact that there was no evidence the defendant was a sophisticated computer user, that he tried to get access to the

cache files, or that he knew of the cache’s existence”); United States v. Bass, 411 F.3d 1198 (10th Cir. 2005)(“In Bass,

the court relied on the fact that the defendant used software specifically aimed at eliminating the digital residue of his

illicit activities to determine that the defendant did knowingly receive the files stored in his internet cache”).

191

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Ultimately, the facts of a given case will determine whether the defendant is the unwitting victim

of technology or knowingly received child pornography.195 The government’s burden includes

proving that the defendant knew that child depicted was real and underage.196

For purposes of the jurisdictional element, “the government prove[s] images traveled interstate

when it introduce[s] evidence that the defendant received images that were transmitted over the

Internet.”197

To be guilty of attempted violation of subsection 2252(b)(2), the defendant must have intended to

receive or distribute child pornography and taken a substantial step towards the achievement of

that goal.198

When a court faces the question of whether a defendant must be sentenced to the mandatory

minimum 15-year term of imprisonment reserved for recidivists in a case where the prior

conviction occurred under a statute proscribing both qualifying and non-qualifying offenses, the

court “may refer to the charging document, the terms of a plea agreement, the transcript of the

colloquy, jury instructions, and other comparable judicial records.”199

Sale or Possession With Intent to Sell

Subsection 2252(a)(3), which prohibits the sale of, or possession with intent to sell, child

pornography under various jurisdiction circumstances, requires imposition of a 5-year mandatory

minimum term of imprisonment as well (a minimum of 15 years for recidivists).200 The same

penalties must be assessed upon conviction of an attempt or conspiracy to violate the

subsection.201 Jurisdiction exists if the offense occurs within the special maritime and territorial

195

E.g., United States v. Winkler, 639 F.3d 692, 699 (5th Cir. 2011)(“Those facts speak to a pattern of child

pornography receipt and possession that could also have caused a rational jury to conclude that Winkler knowing

received the files in Count One. In sum, this is not the exceptional case in which the government has persisted in

bringing a criminal prosecution against the unknowing victim of a computer’s inner workings”).

196

United States v. Szymanski, 631 F.3d 794, 798-99 (6th Cir. 2011); United States v. Pires, 642 F.3d 1, 8 (1st Cir.

2011); United States v. McNealy, 625 F.3d 858, 870 (5th Cir. 2010), all citing United States v. X-Citement Video, Inc.,

513 U.S. 64, 70-3 (1994).

197

United States v. Pires, 642 F.3d 1, 9 (1st Cir. 2011); see also, United States v. MacEwan, 445 F.3d 237, 244 (3d Cir.

2006)(“[B]ecause of the very interstate nature of the Internet, once a user submits a connection request to a website

server or an image is transmitted from the website server back to the user the data has traveled in interstate

commerce”).

198

United States v. Pires, 642 F.3d 1, 8 (1st Cir. 2011)(internal citations omitted)(“To prove attempt, the government

must show both that the accused intended to commit the underlying substantive offense (here, knowing receipt of child

pornography) and that he took a substantial step toward committing that crime. But this does not mean that the

government bore a burden to prove each element of the underlying offense. While the underlying offense in this case

requires the receipt of images of real-life minors engaged in sexually explicit conduct, the government in an attempt

case has no burden to prove that the appellant knew that the downloaded file actually contained such images. Rather,

the government is required to prove that the appellant believed that the received file contained such images”); United

States v. Dobbs, 629 F.3d 1199, 1208-209 (10th Cir. 2011).

199

United States v. Linngren, 652 F.3d 868, 870-71 (8th Cir. 2011); United States v. Becker, 625 F.3d 1309, 1310-313

(10th Cir. 2010)

200

18 U.S.C. 2252(a)(3), (b)(1).

201

18 U.S.C. 2252(b)(1).

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jurisdiction of the United States, on a federal facility or Indian reservation.202 It also exists if

interstate commerce is implicated in the offense.203

Recidivist Possession

Recidivists in possession of child pornography must be sentenced to 10-year minimum term of

imprisonment under subsection 2252(a)(4), as must a recidivist convicted of attempting or

conspiring to violate the subsection.204 The necessary jurisdictional circumstances are the same as

those which apply in the case of the sale offense under subsection 2252(a)(3).205

Qualifying prior convictions may include convictions under either state or federal law.206 The

offender’s prior state conviction must be “related to” one of the statutorily described offenses and

involve a minor, but the statute of conviction need not list a minor victim as an element of the

offense.207 “[T]he sentencing court looks to the fact of conviction and the statutory definition of

the prior offense and determines whether the full range of conduct encompassed by the statute

qualifies to enhance the sentence.”208 In this exercise, “[i]f the statute [of prior conviction]

criminalizes both conduct that would qualify a defendant for an enhancement, as well as conduct

that would not do so, the court may refer to the charging document, the terms of a plea

agreement, the transcript of the colloquy, jury instructions, and the comparable judicial records to

determine the basis for the guilty plea or verdict [in the prior case].”209

202

18 U.S.C. 2252(a)(3)(“Any person who ... (A) in the special maritime and territorial jurisdiction of the United

States, or on any land or building owned by, leased to, or otherwise used by or under the control of the Government of

the United States, or in the Indian country as defined in section 1151 of this title, knowingly sells or possesses with

intent to sell any visual depiction ... shall be punished as provided in subsection (b) of this section”).

203

18 U.S.C. 2252(a)(3)(“Any person who ... (B) knowingly sells or possesses with intent to sell any visual depiction

that has been mailed, shipped, or transported using any means or facility of interstate or foreign commerce, or has been

shipped or transported in or affecting interstate or foreign commerce, or which was produced using materials which

have been mailed or so shipped or transported using any means or facility of interstate or foreign commerce, including

by computer, if - (i) the producing of such visual depiction involves the use of a minor engaging in sexually explicit

conduct; and (ii) such visual depiction is of such conduct ... shall be punished as provided in subsection (b) of this

section”).

204

18 U.S.C. 2252(b)(2).

205

18 U.S.C. 2252(a)(4)(“Any person who ... either (A) in the special maritime and territorial jurisdiction of the United

States, or on any land or building owned by, leased to, or otherwise used by or under the control of the Government of

the United States, or in the Indian country as defined in section 1151 of this title, knowingly possesses, or knowingly

accesses with intent to view, 1 or more books, magazines, periodicals, films, video tapes, or other matter which contain

any visual depiction; or (B) knowingly possesses, or knowingly accesses with intent to view, 1 or more books,

magazines, periodicals, films, video tapes, or other matter which contain any visual depiction that has been mailed, or

has been shipped or transported using any means or facility of interstate or foreign commerce or in or affecting

interstate or foreign commerce, or which was produced using materials which have been mailed or so shipped or

transported, by any means including by computer, if - (i) the producing of such visual depiction involves the use of a

minor engaging in sexually explicit conduct; and (ii) such visual depiction is of such conduct; shall be punished as

provided in subsection (b) of this section”).

206

18 U.S.C. 2252(b)(2); United States v. Stults, 575 F.3d 834, 844-45 (9th Cir. 2009); United States v. McCutchen, 419

F.3d 1122, 1125 (10th Cir. 2005).

207

United States v. Stults, 575 F.3d 834, 846 (9th Cir. 2009); United States v. McCutchen, 419 F.3d 1122, 1125 (10th

Cir. 2005); cf., United States v. Rezin, 322 F.3d 443, 447-48 (7th Cir. 2003).

208

United States v. Stults, 575 F.3d 834, 845 (9th Cir. 2009).

209

Id.

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Subsection 2252(a)(4) has two distinctive features. First, offenders are not subject to a mandatory

minimum term of imprisonment, unless the recidivist provisions are tripped.210 Second,

subsection 2252(c) provides a narrow explicit statutory defense, available when possession is

minimal and the individual destroys the material or reveals it to authorities.211

Certain Activities Involving Child Pornography (Real and Virtual)

Sections 2252 and 2252A were almost identical at one point.212 Section 2252 covered only visual

depictions of sexual activity involving an actual child. Section 2252A covered visual depictions

of sexual activity involving a digitally created child as well.213 Other changes have occurred over

the years, but that essential distinction remains. So too do the mandatory minimum terms of

imprisonment that attend comparable violations of either section.

At least a 5-year term of imprisonment must be imposed for a violation, attempt to violate, or

conspiracy to violate any of five child pornography-related offenses found in subsection 2252A:

transportation; receiving or distributing; reproducing or promoting; selling or possession with

intent to sell; or providing to a child.214 Recidivists must be sentenced to imprisonment for not

less than 15 years (not less than 10 years for a recidivist guilty of simple possession).215 As

discussed below, a 20-year mandatory term of imprisonment attends conviction for a child

exploitation enterprise offense involving multiple violations of subsection 2252A(a) and related

child abuse offenses that involve several children and several collaborators.216

210

18 U.S.C. 2252(b).

18 U.S.C. 2252(c)(“It shall be an affirmative defense to a charge of violating paragraph (4) of subsection (a) that the

defendant - (1) possessed less than three matters containing any visual depiction proscribed by that paragraph; and (2)

promptly and in good faith, and without retaining or allowing any person, other than a law enforcement agency, to

access any visual depiction or copy thereof - (A) took reasonable steps to destroy each such visual depiction; or (B)

reported the matter to a law enforcement agency and afforded that agency access to each such visual depiction”).

212

Compare 18 U.S.C. 2252 (1994 ed. & Supp. II), with 18 U.S.C. 2252A (1994 ed. Supp. II); see also, U.S.

Department of Justice, Criminal Resource Manual §1969 (2000)(“Title 18 U.S.C. §2252A is identical to 18 U.S.C.

§2252....”), available at http://www.justice.gov/usao/eousa/foia_reading_room/usam/title9/crm01969.htm.

213

Then, as now, the prohibitions of subsection 2252A(a) reached “any visual depiction, including any photograph,

film, video, picture, or computer or computer-generated image or picture, whether made or produced by electronic,

mechanical, or other means, of sexually explicit conduct, where - (A) the production of such visual depiction involves

the use of a minor engaging in sexually explicit conduct; (B) such visual depiction is a digital image, computer image,

or computer-generated image that is, or is indistinguishable from, that of a minor engaging in sexually explicit conduct;

or (C) such visual depiction has been created, adapted, or modified to appear that an identifiable minor is engaging in

sexually explicit conduct,” 18 U.S.C. 2256(8). The Supreme Court in Ashcroft v. Free Speech Coalition, 535 U.S. 234,

256 (2002) found an earlier version of paragraph 2256(8)(B)(“appears to be a minor”) overbroad and impermissible

under the First Amendment. It found the language in then paragraph 2256(8)(D)(“conveys the impression”) overbroad

as well, id. at 258. Congress subsequently amended paragraph 2256(8)(B) and repealed paragraph 2256(8)(D), P.L.

108-21, §§502(a)(1), 502(a)(3), 117 Stat. 678 (2003).

214

18 U.S.C. 2252A(b)(1).

215

18 U.S.C. 2252A(b)(1), (b)(2).

216

18 U.S.C. 2252A(g)(“(1) Whoever engages in a child exploitation enterprise shall be fined under this title and

imprisoned for any term of years not less than 20 or for life. (2) A person engages in a child exploitation enterprise for

the purposes of this section if the person violates section 1591, section 1201 if the victim is a minor, or chapter 109A

(involving a minor victim), 110 (except for sections 2257 and 2257A), or 117 (involving a minor victim), as a part of a

series of felony violations constituting three or more separate incidents and involving more than one victim, and

commits those offenses in concert with three or more other persons”).

211

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Transporting

A 5-year mandatory term of imprisonment must be imposed on “[a]ny person who - (1)

knowingly mails, or transports or ships using any means or facility of interstate or foreign

commerce or in or affecting interstate or foreign commerce by any means, including by computer,

any child pornography.”217 A mandatory 15-year term of imprisonment awaits recidivists.218

The subsection’s recently expanded jurisdictional statement (“using any means ... affecting ...

commerce”) eliminates the split among the lower federal appellate courts over whether the earlier

version of the statute covered any Internet use, or use where actual interstate transportation can be

shown.219 On the other hand, the use of a computer is not an element of the offense; the offense

may be committed with or without the use of computer.220

Defendants accused of violating the transportation prohibition of subsection 2252A(a)(1) enjoy a

relatively narrow affirmative defense.221 The defense is available, if, after giving the required pretrial notice, the defendant establishes that the alleged child pornography did not involve the use of

a real child or the image of a real child.222

217

18 U.S.C. 2252A(a)(1), (b)(1).

18 U.S.C. 2252A(b)(1)(“Whoever violates, or attempts or conspires to violate, paragraph (1), (2), (3), (4), or (6) of

subsection (a) shall be fined under this title and imprisoned not less than 5 years and not more than 20 years, but, if

such person has a prior conviction under this chapter, section 1591, chapter 71, chapter 109A, or chapter 117, or under

section 920 of title 10 (article 120 of the Uniform Code of Military Justice), or under the laws of any State relating to

aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward, or the production,

possession, receipt, mailing, sale, distribution, shipment, or transportation of child pornography, or sex trafficking of

children, such person shall be fined under this title and imprisoned for not less than 15 years nor more than 40 years”).

219

United States v. Wright, 625 F.3d 583, 590-601 (9th Cir. 2010).

220

United States v. Tenuto, 593 F.3d 695, 698-99 (7th Cir. 2010).

221

18 U.S.C. 2252A(c).

218

222

18 U.S.C. 2252A(c)(“It shall be an affirmative defense to a charge of violating paragraph (1), (2), (3)(A), (4), or (5)

of subsection (a) that - (1)(A) the alleged child pornography was produced using an actual person or persons engaging

in sexually explicit conduct; and (B) each such person was an adult at the time the material was produced; or (2) the

alleged child pornography was not produced using any actual minor or minors.

“No affirmative defense under subsection (c)(2) shall be available in any prosecution that involves child pornography

as described in section 2256(8)(C). A defendant may not assert an affirmative defense to a charge of violating

paragraph (1), (2), (3)(A), (4), or (5) of subsection (a) unless, within the time provided for filing pretrial motions or at

such time prior to trial as the judge may direct, but in no event later than 14 days before the commencement of the trial,

the defendant provides the court and the United States with notice of the intent to assert such defense and the substance

of any expert or other specialized testimony or evidence upon which the defendant intends to rely. If the defendant fails

to comply with this subsection, the court shall, absent a finding of extraordinary circumstances that prevented timely

compliance, prohibit the defendant from asserting such defense to a charge of violating paragraph (1), (2), (3)(A), (4),

or (5) of subsection (a) or presenting any evidence for which the defendant has failed to provide proper and timely

notice”).

18 U.S.C. 2256(8)(C)(“ ‘child pornography’ means any visual depiction, including any photograph, film, video,

picture, or computer or computer-generated image or picture, whether made or produced by electronic, mechanical, or

other means, of sexually explicit conduct, where ... (C) such visual depiction has been created, adapted, or modified to

appear that an identifiable minor is engaging in sexually explicit conduct”).

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Receipt or Distribution

Section 2252A punishes the knowing receipt or distribution of child pornography, committed

under certain jurisdictional circumstances, with imprisonment for not less than 5 years.223 It

punishes attempt and conspiracy in the same manner.224 It imposes a minimum 15-year term of

imprisonment upon recidivists.225 The offense must be committed knowingly; inadvertent receipt

is not a violation.226 Knowing violation occurs, for instance, when the defendant “intentionally

views, acquires, or accepts child pornography on a computer from an outside source.”227

Attempted violation requires evidence of an intent to commit the offense and a substantial step

beyond mere preparation towards that goal.228 Factual impossibility, such as the absence of a real

child in a sting situation, poses no obstacle to conviction for attempt.229

Possession of child pornography under subsection 2252A(a)(5) is a lesser included offense to the

crime of receipt of child pornography under subsection 2252A(a)(2).230 The Constitution’s double

jeopardy clause thus precludes punishment under both subsections for the same misconduct.231

Punishment under both subsections is permissible, however, when each addresses a different

violation.232 The double jeopardy clause may also bar punishment for receipt of child

pornography under both subsection 2252(a)(2) and 2252A(a)(2), unless the offenses involve

different violations; for example, the 2252A(a)(2) offense involves a digital image and the other

involves a real child.233

223

18 U.S.C. 2252A(“(a) Any person who ... (2) knowingly receives or distributes—(A) any child pornography that has

been mailed, or using any means or facility of interstate or foreign commerce shipped or transported in or affecting

interstate or foreign commerce by any means, including by computer; or (B) any material that contains child

pornography that has been mailed, or using any means or facility of interstate or foreign commerce shipped or

transported in or affecting interstate or foreign commerce by any means, including by computer ... shall be punished as

provided in subsection (b). (b)(1) Whoever violates, or attempts or conspires to violate paragraph ... (2) ... shall be ...

imprisoned not less than 5 years ...”).

224

Id.

225

18 U.S.C. 2252A(b)(1)(“Whoever violates, or attempts or conspires to violate, paragraph (1), (2), (3), (4), or (6) of

subsection (a) shall be fined under this title and imprisoned not less than 5 years and not more than 20 years, but, if

such person has a prior conviction under this chapter, section 1591, chapter 71, chapter 109A, or chapter 117, or under

section 920 of title 10 (article 120 of the Uniform Code of Military Justice), or under the laws of any State relating to

aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward, or the production,

possession, receipt, mailing, sale, distribution, shipment, or transportation of child pornography, or sex trafficking of

children, such person shall be fined under this title and imprisoned for not less than 15 years nor more than 40 years”).

226

United States v. Pruitt, 638 F.3d 763, 766 (11th Cir. 2011).

227

Id.

228

United States v. Bauer, 626 F.3d 1004, 1007-1008 (8th Cir. 2010).

229

Id.

230

United States v. Dudeck, 657 F.3d 424, 428-29 (6th Cir. 2011), citing in accord United States v. Muhlenbruch, 634

F.3d 987, 1003-04 (8th Cir. 2011); United States v. Bobb, 577 F.3d 1366, 1373-375 (11th Cir. 2009); United States v.

Miller, 527 F.3d 54,72 (3d Cir. 2008).

231

United States v. Ehle, 640 F.3d 689, 694-95 (6th Cir. 2011); United States v. Overton, 573 F.3d 679, 695 (9th Cir.

2009).

232

United States v. Dudeck, 657 F.3d 424, 430 (6th Cir. 2011)(“[W]hile possession of child pornography is generally a

lesser-included offense of receipt of child pornography, conviction under both statutes is permissible if separate

conduct is found to underlie the two offenses”); United States v. Bobb, 577 F.3d 1366, 1375 (11th Cir. 2009); United

States v. Overton, 573 F.3d 679, 695 (9th Cir. 2009).

233

United States v. Dudeck, 657 F.3d 424, 431 (6th Cir. 2011),

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Reproduction or Promotion

Knowingly reproducing or promoting child pornography carries the same 5-year mandatory

minimum term of imprisonment (15 years for recidivists).234 Reproduction and the promotion

offenses are distinct. Both offenses, however, rest on a broad claim of federal jurisdiction:

utilization of a means or facility “affecting interstate or foreign commerce” by any manner

“including by computer.”235

The Supreme Court in Williams held that neither the reproduction nor promotion proscription

violates either First Amendment over breadth restrictions or Fifth Amendment due process

vagueness limitations.236 The Court dissected several of subsection 2252A(a)(3)’s features in the

course of its analysis.

First, it observed that the knowledge requirement applies to both the reproduction and promotion

offenses.237 Second, it said that the action elements of the promotion offense—“advertises,

promotes, presents, distributes, or solicits”—bespeaks a transaction, although not necessarily a

commercial transaction.238 “That is to say, the statute penalizes speech that accompanies or seeks

to induce a transfer of child pornography—via production or physical delivery—from one person

to another.”239

For the promotion offense, the advertisement, promotion, or presentation must be advanced with

one of two intents: either “in a manner that reflects belief” that child pornography is being

offered, or in a manner that is calculated to induce another to believe child pornography is being

offered. As for the first, the manner of advertisement, promotion, or presentation “must

objectively manifest a belief that the material is child pornography; a mere belief, without an

accompanying statement or action that would lead a reasonable person to understand that the

defendant holds that belief, is insufficient.”240 As for the second, “the defendant must ‘intend’ that

the listener believe the material to be child pornography, and must select a manner of

‘advertising, promoting, presenting, distributing, or soliciting’ the material that he thinks will

engender the belief—whether or not a reasonable person would think the same.”241

234

18 U.S.C. 2252A(“(a) Any person who ... (3) knowingly - (A) reproduces any child pornography for distribution

through the mails, or using any means or facility of interstate or foreign commerce or in or affecting interstate or

foreign commerce by any means, including by computer; or (B) advertises, promotes, presents, distributes, or solicits

through the mails, or using any means or facility of interstate or foreign commerce or in or affecting interstate or

foreign commerce by any means, including by computer, any material or purported material in a manner that reflects

the belief, or that is intended to cause another to believe, that the material or purported material is, or contains - (i) an

obscene visual depiction of a minor engaging in sexually explicit conduct; or (ii) a visual depiction of an actual minor

engaging in sexually explicit conduct ... shall be punished as provided in subsection (b)”); 18 U.S.C. 2252A(b)(1).

235

18 U.S.C. 2252A(a)(3)(A), (a)(3)(B).

236

United States v. Williams, 553 U.S. 285, 292-307 (2008).

237

Id. at 294.

238

Id. at 295.

239

Id.

240

Id. at 296.

241

Id.

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Defendants charged with the reproduction offense may invoke the narrow affirmative defense

covering pornography that involves only adults; defendants charged with the promotion offense

may not.242

Sale or Intent to Sell

The same 5- and 15-year mandatory minimum terms of imprisonment follow conviction for

selling or possession with intent to sell child pornography if committed under a wide range of

jurisdictional circumstances, or for attempting or conspiring to do so.243 Jurisdiction exists if the

offense occurs on federal enclaves or facilities or in Indian country.244 It also exists if the offense

involves transportation using a means or facility in or affecting interstate or foreign commerce.245

The affirmative defense available when children have not been used in the pornography may be

claimed by defendants charged with selling or intent to sell child pornography.246

Offering Child Pornography to a Child

Section 2252A requires a fine and a minimum term of imprisonment of 5 years for offering child

pornography to a child with the intent to induce the child to engage in illegal activity, or

attempting or conspiring to do so.247 It requires a fine and a minimum term of 15 years for

recidivists.248 The offense is punishable if the offer, the pornography, or the material used to

produce the pornography, was transported using a means or facility in or affecting interstate or

foreign commerce.249 The defendants charged under the offering offense of subsection

242

18 U.S.C. 2252A(c)(emphasis added)(“It shall be an affirmative defense to a charge of violating paragraph (1), (2),

(3)(A), (4), or (5) of subsection (a) that - (1)(A) the alleged child pornography was produced using an actual person or

persons engaging in sexually explicit conduct; and (B) each such person was an adult at the time the material was

produced; or (2) the alleged child pornography was not produced using any actual minor or minors”).

243

18 U.S.C. 2252A(a)(4), (b)(1).

244

18 U.S.C. 2252A(“(a) Any person who ... (4) ... (A) in the special maritime and territorial jurisdiction of the United

States, or on any land or building owned by, leased to, or otherwise used by or under the control of the United States

Government, or in the Indian country (as defined in section 1151), knowingly sells or possesses with the intent to sell

any child pornography ... shall be punished as provided in subsection (b)”).

245

18 U.S.C. 2252A(“(a) Any person who ... (4) ... (B) knowingly sells or possesses with the intent to sell any child

pornography that has been mailed, or shipped or transported using any means or facility of interstate or foreign

commerce or in or affecting interstate or foreign commerce by any means, including by computer, or that was produced

using materials that have been mailed, or shipped or transported in or affecting interstate or foreign commerce by any

means, including by computer ... shall be punished as provided in subsection (b)”).

246

18 U.S.C. 2252A(c).

247

18 U.S.C. 2252A(“(a) Any person who ... (6) knowingly distributes, offers, sends, or provides to a minor any visual

depiction, including any photograph, film, video, picture, or computer generated image or picture, whether made or

produced by electronic, mechanical, or other means, where such visual depiction is, or appears to be, of a minor

engaging in sexually explicit conduct ... for purposes of inducing or persuading a minor to participate in any activity

that is illegal ... shall be punished as provided in subsection (b)”); 18 U.S.C. 2252A(b)(1).

248

18 U.S.C. 2252A(b)(1).

249

18 U.S.C. 2252A(“(a) Any person who ... (6) knowingly ... offers ... to a minor any visual depiction ... where such

visual depiction is, or appears to be, of a minor engaging in sexually explicit conduct - (A) that has been mailed,

shipped, or transported using any means or facility of interstate or foreign commerce or in or affecting interstate or

foreign commerce by any means, including by computer; (B) that was produced using materials that have been mailed,

shipped, or transported in or affecting interstate or

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