Sentencing Guidelines – The sentencing court did not err in declining to group together convictions for child pornography, since each image represented distinct harm to distinct victims.
The defendant appealed his 570 month sentence, arguing that the sentencing court erred by refusing to “group together” or merge his convictions for production and attempted production of child pornography. The defendant argued that these two charges were “closely related” and caused the same composite harm.
The district court declined to group the convictions together and the Court affirmed on appeal. While U.S.S.G. § 3D1.2 provides that “all counts involving substantially the same harm shall be grouped together into a single Group,” Faulker had failed to show that: a) the counts were based on the same act or transaction, b) the counts involved “substantially the same harm,” c) the charged offense was already accounted for under the Guidelines provision governing the principal offense, and d) the offense level was not determined on a loss amount or other “measure of aggregate harm.”
The counts were based on pictures that the defendant took on different days, with different victims, and under different circumstances. While conspiracy counts and substantive counts should be grouped together, the Court advised, attempted crimes and completed crimes on distinct occasions should not. Regarding the specific characteristics of child pornography offenses, “each act usually amounts to a fresh harm the victim must face.” Accordingly, grouping the counts for production and attempted production of child pornography was not warranted.
The Court did add, however, that grouping such counts by be appropriate in other circumstances, such as if a defendant’s attempt to produce was immediately followed by completion of the crime or if it was a conspiracy count. The Court also rejected the defendant’s assertion that his conduct should be deemed harmless since the minors in question were unaware that he was photographing them.
Appeal from the Middle District of Tennessee
Opinion by Readler, joined by Suhrheinrich and Bush