[I am not an attorney. Nothing in this post, nor anything in this blog for that matter, should be construed as legal advice. Always consult an attorney for legal advice. Got it?]
This post is primarily for those readers who have caught charges similar to mine, and are awaiting trial. My message is simple:
FIGHT.
I’m well aware that 9 out of 10 federal trials end up in a guilty plea, but even if you’re pleading out, there is still something you may try to reduce your sentence further. Make sure that you have a paid attorney for this, because public defenders are overloaded with clients, and they want to get rid of you as quickly as possible. They’re not interested in fighting anything. Oh, and before you go out and hire the most expensive lawyer money can buy, please note that I DO NOT guarantee success.
If you’re looking at a c.p. possession charge like mine and you are pleading guilty, you are probably going to get a “guideline sentence”. (You can probably type “federal guideline sentencing chart” into Google to find the chart I’m about to discuss.)
The chart itself is pretty straightforward. The more “points” you have, the longer your recommended sentence is. I had no prior convictions, with 28 points on the chart. The judge gave me the minimum recommended sentence, which was 78 months.
You figure out your points by adding your charge to your enhancements to get your final score. (Pleading guilty lowers the final score by two.) You will need to do some Googling or ask your lawyer for the law book that shows how your points are calculated.
There is a particular enhancement that almost all people on trial for c.p. get that makes NO D*** SENSE. Before I tell you which one it is, I should describe what an enhancement is.
What is an Enhancement?
An enhancement is aggravating factor in your case which gets you more points, and thus more time. Here are some examples of enhancements in c.p. cases:
- having excessive amounts of images
- having images which contain minors under a specified age
- having images which display minors in acts of sadomasochism / bondage
- having images which display minors in acts of violence (any kind of penetration counts)
I kind of disagree with a lot of these enhancements because it feels like the government is holding me accountable for what others have done. If your rationale behind this is that you believe that I wished that I was the one committing the acts contained in the pictures, well, now you’re getting into the realm of THOUGHT crimes. (I shouldn’t have to explain what’s wrong with that.) I freely admit that downloading c.p. was a terrible idea, and that there should be consequences, but what the government is doing is overkill. Two wrongs don’t make a right.
Anyway, don’t bother with trying to fight the above enhancements if they caught you red-handed. It’d be a total waste of your time and money. Instead, you may want to challenge the silliest enhancement in the world, which is – drum roll, please –
Use of a computer.
What the f#@! is up with that? TWO points just for using a computer? Well, I’m sorry, Your Honor, the next time I download c.p., I’ll do it on my TOASTER so I can avoid the extra two points. How in the nine hells do they expect someone in a modern society to acquire c.p. without a computer?
Acquiring media through the use of personal computing devices has started to replace all other forms of media transmission, legal or otherwise. Want to watch a movie? Don’t bother with getting in your car and going to a video rental store; just download it to your computer, Xbox 360, PS3 or Nintendo Wii with Netflix. Want to read that new adventure novel or your favorite newspaper? Why bother with paper copies that take up space in your house when you can just download them to your Kindle or iPad and have them in seconds? And, of course, no one bothers with FILM still cameras or VIDEOTAPE video cameras anymore. Everything is digital, and devices are designed to interface with a computer.
So just because I used a computer to get c.p., I got THIRTEEN extra months on my sentence. Imagine getting fined for a DUI, then getting an extra fine because you did it in a car. Well, if you didn’t want the extra fine, you should have been riding a HORSE, the prosecution says. Yeah, that’s fair.
The use of a computer enhancement is obsolete and needs to go away. NOW.
I myself have talked to a lawyer about making this argument in an appeal, but he ultimately shot it down. He agreed that it was a good point, but the time to bring that up was before I got sentenced. I foolishly waived my right to appeal my sentence as part of my plea bargain, and that ended up killing my whole case.
If any of you are interested in using this argument, you should Google “deconstructing the myth of c.p. sentencing.” You should find a very interesting report done in 2008 that shows the disparity between c.p. and other sex crimes. Give a copy to your attorney. Hopefully, my editor will put a few links at the bottom of the page when this is posted.
If anyone has any luck with this argument, please let us know so we can spread the good news! If you are facing trial for c.p., don’t let the government just do whatever they want to you.
Go down fighting.
2010 Federal Sentencing Guidelines Manual, CHAPTER 2 - PARTS E – K (Part G: Possessing Material Involving the Sexual Exploitation of a Minor) (start with Section 2G2.2 at the bottom of page 22 of the pdf file, document page 211)
Supplement to Appendix C - Amendments to the Guidelines Manual (2010 guideline changes for c.p. possession begin on page 46)
2010 Federal Sentencing Guidelines Manual, Chapter 5 - Determining the Sentence (see page 2 of the pdf file for the chart to convert points to months; that’s document page 401)
[EDITOR’S NOTE: Links updated 12-05-2010]
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