The Heights Boulevard Law Building 1545 Heights Blvd., Ste 700 Houston, TX 77008

Amended Sentencing Guidelines for Child Pornography


Neal Davis's picture

Amended Sentencing Guidelines for Child Pornography

For decades, punishments for possessing child pornography in America have been widely criticized as being extremely harsh. As a result, the bipartisan United States Sentencing Commission amended federal sentencing guidelines, effective Nov. 1, 2016.

Established in 1985, the commission is an independent agency in the federal government's judicial branch that develops national sentencing policies for federal courts.


Such sentencing guidelines are designed to give structure to sentencing so that similar offenders committing similar offenses get similar sentences.

Enhanced Sentencing Changes for Child Pornography Crimes

One big change of the commission's amended sentencing for child porn involves "enhanced" sentencing. That refers to situations when a sentence - or punishment - is raised on account of various aggravating factors.

The new sentencing guidelines lower the number or types of cases in which enhancement is applied. Under the new guidelines, enhancement (or increases) in child porn sentencing only applies, in the peer-to-peer context, when the defendant actually knew he was sharing or distributing child pornography.

Further, for an enhancement involving distribution for value, the defendant must have "agreed to an exchange with another person under which the defendant knowingly distributed to that other person for the specific purpose of obtaining something of valuable consideration from that other person, such as other obscene material, preferential access to obscene material, or access to a child."

Child Porn Possession, Receipt or Distribution?

With child pornography, three separate crimes can be involved (besides production). One is possession and one is receipt of child pornography. They are usually charged together. Another is distribution of such materials.

The amended sentencing guidelines apply primarily to distribution, namely whether the person unknowingly shared, or distributed, such materials.

Unknowing Distribution of Child Pornography

Legal analysts say the reason for this amended language is because many persons have claimed that even though they had, in fact, downloaded images of child porn, they were not guilty of sharing such images, though it may have appeared they were.

Their argument was that the default settings on peer-to-peer (P2P) programs was to "share," so they may have shared without taking affirmative or direct action to do so.

Some courts have rejected the argument that a person can unknowingly distribute child porn due to such a default share setting. But others have accepted it, agreeing that a person can unknowingly distribute if there is a default share setting. The amended sentencing guidelines align more closely with the latter argument, curbing application of enhanced sentencing.

The new guidelines provide that increased or enhanced sentencing only can be applied when the defendant actually knew he was sharing on a P2P program.

Many P2P programs, such as BitTorrent, default to sharing files. Thus, such sharing via peer-to-peer file-sharing programs including Ares, FrostWire, Limewire or BitTorrent would be excluded from harsher punishments - or enhanced sentencing - under the newly amended child porn sentencing guidelines, unless the government can show the defendant knew he was sharing.

Some file-sharing programs mandate sharing, while others - including BitTorrent - let users opt-in or out of sharing files.

Resistance to Harsh Child Porn Sentencing

Before the commission handed down its new child porn sentencing guidelines, some courts had shown a resistance to harsh child porn sentencing.

For instance, in New York federal court, U.S. District Judge Jack Weinstein sentenced a Brooklyn man who faced 10 years in prison for downloading child pornography to just five days in jail instead. The federal judge strongly criticized the punishment guidelines at the time for failing to distinguish between dangerous offenders and those posing little threat to society.

The judge said that removing the man from his family "will not further the interests of justice."

child pornography sentencing guidelines

The judge also said that sentencing guidelines at the time of the trial (before last fall's amended guidelines) "do not adequately balance the need to protect the public, and juveniles in particular, against the need to avoid excessive punishment."

Earlier sentencing guidelines had held that the defendant, if convicted, could face a sentence of 6½ to 8 years in prison. Congress doubled federal sentencing ranges for possessing child porn in 2003. But in recent years, federal judges who resisted such severe sentencing guidelines handed down lesser sentences in nearly half of all cases.

The federal judge in the Brooklyn man's case, while rebuking harsh sentencing guidelines then in effect, instead sentenced the man to a fine and seven years of court supervision, along with five days in jail. (The man already had served those five days in jail before making bail.)

Broad Number of Americans Exposed to Child Porn Offenses

As the judge noted, the Internet has made child porn accessible to a much broader number of Americans who otherwise might never have been exposed to it, or exposed themselves to it. Also, those who "surf" the Web looking for legal adult pornography sometimes are inadvertently exposed to illegal online child porn in the process.

As a result, many law-abiding citizens with no criminal record have been subjected to public disgrace, lost careers, heavy fines and severe prison sentences for child porn.

However, with newly amended sentencing guidelines in place, judges are being advised to curb the application of enhanced punishment in some cases of child porn distribution.

Hire an Experienced Child Porn Defense Lawyer

If you or a loved one have been unjustly accused of distributing child pornography and are concerned about harsh sentencing, rest assured that you can get an experienced child porn attorney in Houston criminal defense attorney Neal Davis.

Neal Davis was recently able to help a defendant reclaim his seized computers and avoid any charge of possessing child porn. Of course, every case is different and has its own unique facts.  Let the Neal Davis Law Firm guide you in your defense against child porn laws, which remain severe even with amended sentencing guidelines.

Contact sex crime defense lawyer Neal Davis today for a free legal review of your case.

TX Personal Injury Law


5-star review image
Got my life back
Positive outcome in online solicitation case

" Words cant express how grateful i am for having Neil on my side. I was involved in a police sting for online solicitation. When i though my life was over i contacted Neil. He told me he would do everything he could to get me out of my situation. He kept me up to date and answered when i called. In the end my case ended with a no bill and i can finally start living my life again."

Online Solicitation • Houston • Rating: 5.0/5
5-star review image
Muy satisfechos con su trabajo
Dismissal of two online charges

" Estamos muy satisfechos con su representacion en el caso de nuestro sobrino. Siempre obtuvimos respuestas a todas nuestras preguntas, y acceso a ustedes sin ningun problema. El caso se resolvio satisfactoriamente y en una forma muy rapida. Gracias!"

Online Solicitation • Conroe • Rating: 5.0/5
5-star review image
He doesn't give up, no matter what you're up against
Client's child sex abuse case was dismissed

" This man saved my life from false imprisonment. Neal's belief in 'liberty and justice for all' as laid out in the Constitution of the United States, and especially as that principle relates to constitutional rights regarding the receipt of a fair trial, coupled with his refusal to quit fighting, are attributes of a noble spirit and a man of high character. When I interviewed Neal to defend me against very serious false accusations and criminal charges that followed, his candor about what I was up against and his real interest in my general welfare made choosing him to defend me a 'no brainer.' Hiring Neal after hearing Dick DeGuerin say 'Neal is a real fighter' was the best decision I could have made and this was after interviewing a number of attorneys. He cares about people, truth, and justice; an attorney who will not give up; a man who will defend the rights of anyone accused of a crime with every fiber of his being to ensure fairness and the protection of our legal rights."

Sex Crimes • Houston • Rating: 5.0/5

Read All Reviews

5/5 based on 50 reviews.