United States v. Anthony Spence (11th Cir. May 2019)

Sentencing – The sentencing court may increase a defendant’s offense level based on extraterritorial relevant conduct.

Upon returning to the U.S. from Jamaica, Anthony Carl Spence was arrested at the airport after law enforcement discovered two videos of child pornography on his phone. He told the agents that he received the cell phone in Jamaica and his girlfriend in New York had sent him the child pornography. He was convicted after a jury trial.

At his sentencing, the district court enhanced Spence’s offense level pursuant to U.S.S.G. § 2G2.2(b)(3)(F) based on Spence having “distributed” the material by showing the videos to others in Jamaica. Spence appealed his sentence, arguing that all of his alleged distribution occurred in Jamaica and the enhancement should not apply to “out-of-country conduct.” Spence relied on the canon of statutory construction creating a presumption against the application of congressional legislation to extraterritorial conduct.

The Eleventh Circuit disagreed and affirmed his sentence. Recognizing the question as an issue of first impression, the Court cited the approach adopted by the Seventh, Tenth, and Eighth Circuits in declining to extend the presumption against extraterritorial application of congressional legislation to preclude a sentencing judge from considering relevant extraterritorial conduct during sentencing.

The Court explained that considering such conduct was important for assessing the gravity of a defendant’s offense, that the Guidelines are silent on limiting consideration of relevant conduct occurring outside the U.S., and that other sentencing statutes, like 18 U.S.C. § 3661, state that “no limitation shall be placed on the information concerning the background, character, and conduct” of a defendant sentenced in federal court.

Appeal from Middle District of Florida

Opinion by Anderson, joined by E. Carnes and Martin

Click here to read the opinion.


Tom Church

Tom is a trial and appellate lawyer focusing on criminal defense and civil trials. Tom is the author of "The Federal Docket" and is a contributor to Mercer Law Review's Annual Survey in the areas of federal sentencing guidelines and criminal law. Tom graduated with honors from the University of Georgia Law School where he served as a research assistant to the faculty in the areas of constitutional law and civil rights litigation. Read Tom's reviews on AVVO. Follow Tom on Linkedin.

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