In U.S. v. Fulford, No. 10-12916 (Nov. 14, 2011), the Court (Carnes, Dubina, Sands b.d.) held that the five-level enhancement of USSG § 2G2.2(b)(3) for distribution of child pornography to a minor did not apply when there was no evidence that the person who received the materials was a minor. The district court had imposed the enhancement because the evidence indicated that the defendant believed that the person who was receiving the materials was a minor; this person, even if an adult, was posing as a minor.
Reversing, the Court noted that the plain language of the definition of a “minor” in the Guideline did not include “anyone the defendant believes is under the age of 18.” Consequently, this omission foreclosed inclusion of this category as a basis for a § 2G2.2(b)(3) enhancement.. “Even if expanding the guidelines definition to cover the facts of this case would be an improvement, it is not our function to modify, amend, or improve statutes or guidelines.”
The Court found unpersuasive the government’s attempts to extend the rationales of other child pornography cases, in which enhancements were applied even though the victim was not a minor but a police officer posing as a minor. The Court contrasted the “clear intent” of Guidelines enhancements to apply in such cases with the text of the Guidelines in § 2G2.2(b)(3). The Court also questioned the reasoning of one of its precedents in which the term “minor” was interpreted “more broadly” than the actual language of the Guidelines.
The Court remanded the case to the district court, for it to rule in the first instance on the government’s alternative argument that the evidence showed that Fulford’s victim was, in fact, a minor.