By Kim Sokolich
Today, in United States v. Cox, the 4th Circuit rejected the argument that United States Sentencing Guideline §2G2.2, governing possession of material depicting sexual exploitation of a minor, requires some sort of heightened evidence that the possession was for the “primary purpose” of producing a visual depiction of such conduct.
According to the South Carolina, Florance County Sheriff’s office, Harvey Cox had long been molesting his minor niece, M.G. When M.G. was twelve years old, Cox began to sexually abuse her and photograph the events. Cox would give M.G. money and would threaten her not to tell anyone. Authorities obtained forty-six Polaroid sexually explicit photographs of M.G. with Cox. On the back of each photograph was a date written in Cox’s handwriting, ranging from June 2004 to December 2005. In 2011, after getting caught faking his own death, Cox pled guilty to a violation of 18 U.S.C. 2251(a) for knowingly possessing material that contained images of child pornography.
In calculating Cox’s Guidelines sentencing range, Cox’s probation officer applied §2G2.2, which is only triggered if “the offense causing a minor to engage in sexually explicit conduct for the purpose of producing a visual depiction of such conduct.The application of this section would result in a higher adjusted offense. Over Cox’s objection, the district court sentenced Cox to 300 concurrent months in prison. Cox appealed.
On appeal, Cox argues that the district court miscalculated his sentencing guidelines range by applying §2G2.2. Specifically, Cox argues that there was no evidence to support a finding that he acted for the purpose of producing pictures of sexually explicit conduct. Cox argues that the photographs taken were not sufficient evidence under §2G2.2, because he did not intent to produce photographs as a “central component of the sexual encounters.” The 4th Circuit was not impressed by this argument.
The Court first addressed the “purpose” requirement under §2G2.2. Following the standard set by the Ninth Circuit in the 2002 case, U.S. v. Hughes, purpose is to be construed broadly and does not mean primary purpose. “In ordinary usage, doing X ‘for the purpose of’ Y does not imply that Y is the exclusive purpose.” Thus Cox cannot immunize himself by stating that he had another reason to sexually abuse his niece. Therefore, the Court found that the “purpose requirement under the Federal Sentencing Guidelines is satisfied as long as at least one of the defendant’s purposes was to produce the visual depiction of sexually explicit conduct.
With that reasoning, the Court had no trouble concluding that the evidence of the photographs with the handwritten dates on them was enough evidence to support the purpose requirement. Judgement affirmed.
