United States District Court, D. Idaho
C. NYE, U.S. DISTRICT COURT JUDGE.
August 8, 2018, the Court held a hearing to sentence Jacob
Lincoln. As part of sentencing, Lincoln urged the Court to
depart from the guidelines and grant a downward variance by
not imposing the “computer enhancement” in
calculating his offense level. The Court heard oral argument
from both parties on this issue.
argument, counsel represented that the Judges in this
District have taken slightly different approaches when it
comes to addressing this enhancement. The Court took the
matter under advisement as a way for the Court to engage in a
thorough review of the subject and develop a policy moving
forward. The Court asked the parties to submit supplemental
briefing on the matter. They did, and after an extensive
review, the Court issues the following decision-specific to
this case-but also outlining its position on the enhancement
for the benefit of counsel in future cases of this nature.
this case, the Court will not apply the
March 15, 2018, the United States charged Lincoln by
Superseding Information with one count possession of Obscene
Visual Representation in violation of 18 U.S.C. §
1466A(b)(1). On March 18, 2018, Lincoln pleaded guilty to the
customary, a Pre-Sentence Report (“PSR”) was
prepared prior to sentencing. The PSR in this case outlined
that Lincoln's base offense level was an eighteen. Four
enhancements were then added to Lincoln's offense level
based upon his specific conduct in this case- the
“prepubescent minor” enhancement (2G2.2(b)(2));
the “sadistic or masochistic” enhancement
(2G2.2(b)(4)); the “use of a computer”
enhancement (2G2.2(b)(6)); and the “number of images
at issue here, is the “use of a computer”
enhancement. This enhancement imposes a two (2) level
enhancement “if the offense involved the use of a
computer or an interactive computer service for the
possession, transmission, receipt, or distribution of the
material, or for accessing with intent to view the
material.” U.S.S.G. § 2G2.2(b)(6).
speaking, the argument against applying this enhancement is
that the use of a computer is not truly an enhancement as it
is present in virtually all cases today. While computer use
may have been less common at the time Congress promulgated
the enhancement, today, the use of computers has become so
ubiquitous in this area that the original justifications for
applying the enhancement are less compelling. An additional
argument is that Congress, not the United States Sentencing
Commission, promulgated the enhancement and it is not
supported by any empirical research.
arguments in favor of applying the enhancement generally
sound in consistency and deference to the guidelines
themselves-i.e. not straying from what is plainly written. In
this District, it appears that the Judges have taken varied
approaches to the issue.
of a computer enhancement is controversial nationwide and
various approaches have resulted in widespread disparity in
sentences imposed in child pornography cases.  These disparities
are the result of some judges refusing to apply the
enhancement citing a lack of research and evidence or the
idea that the enhancements are all but inherent in the crime,
while other judges strictly follow the guidelines and apply
the enhancements as written.
the Ninth Circuit has held that “district courts may
vary from the child pornography Guidelines, § 2G2.2,
based on policy disagreement with them.” United
States v. Henderson, 649 F.3d 955, 963 (9th Cir. 2011).
The Ninth Circuit based this determination upon three United
States Supreme Court cases: Kimbrough v. United
States, 552 U.S. 85 (2007), United States v.
Booker, 543 U.S. 220 (2005), and Spears v. United
States, 555 U.S. 261 (2009), which-broadly speaking-held
that Judges are free to depart from sentencing guidelines on
policy grounds. See Henderson, 649 F.3d at 960
(“Like the crack-cocaine Guidelines at issue in
Kimbrough, the child pornography Guidelines were not
developed in a manner ‘exemplify[ing] the [Sentencing]
Commission's exercise of its characteristic institutional
role.' . . . So district judges must enjoy the same
liberty to depart from them based on reasonable policy
disagreement as they do from ...