Cubero: Affirming 151-month child pornography sentence

In U.S. v. Cubero, No. 12-16337 (June 11, 2014), the Court affirmed the 151-month sentence imposed on a defendant who pled guilty to one count of distribution of child pornography, in violation of 18 U.S.C. § 2252(a)(2), and two counts of possession of child pornography, in violation of § 2252(a)(4)(B). The Court rejected Cubero’s Guidelines “double counting” argument. Cubero argued that because the base offense level for his § 2252(a)(2) distribution offense already took account of the act of “distribution,” he should not have been subject to a two-level enhancement, pursuant to U.S.S.G. § 2G2.2(b)(3)(F), for “distribution.” The Court pointed out that the guideline offense level applied to “receiving,” or “reproducing” child pornography, other means of violating § 2252(a)(2). Hence, it was “appropriate” for the Sentencing Commission to establish a two-level enhancement for distribution, and no double counting occurred. The Court summarily rejected the argument that Cubero should have received a two-level reduction for an offense that was limited to the receipt or solicitation of child pornography. The Court pointed out that Cubero used a peer-to-peer file-sharing network to distribute child pornography. The Court also rejected Cubero’s substantive reasonableness challenge to his sentence. The Court noted that the sentencing court relied on a significant number of factors under § 3553(a), including the “horrific” titles of the child pornography files, and that “relevant differences existed between Cubero’s case and the cases cited by Cubero as comparable ‘downward variance’ cases.”