United States v. Morehouse (4th Cir. May 2022)

The Federal Docket

June 1, 2022

Jonathan Morehouse pleaded guilty without a plea agreement to one count of distribution of child pornography under 18 U.S.C. §§ 2252(a)(2) and (b)(1). The PSR calculated Morehouse’s guideline range to be 97 to 121 months, but the court varied downwards and sentenced him to 84 months.

Part of the PSR’s calculation, which was adopted by the district court, included a five-level enhancement to Morehouse’s base offense level under U.S.S.G. § 2G2.2(b)(3)(B) for distributing the materials in exchange for valuable consideration. The district court applied the enhancement because Morehouse told police during his arrest that he had only possessed the images because he was “building a case” against the website so he could tun them in to law enforcement, and he said that he had sent child pornographic materials for others so that they would send additional materials to him, and he could thereafter report them as well.

The Fourth Circuit held that this enhancement was improperly applied and vacated Morehouse’s sentence and remanded. Though the enhancement would have applied under the Circuit’s precedent in McManus —since Morehouse offered his own images with the “expectation” of receiving something that he valued in return—the Court concluded that McManus no longer controls in light of the 2016 amendment to the Guideline. The 2016 amendment omitted the prior version’s “expectation language and thereby narrowed the application of the Guideline so that it now applies only where there has been a “two-sided exchange.”

The Fourth Circuit thus adopted the approach shared by the Fifth and Sixth Circuits, and the new test for when the enhancement applies has four parts rather than two. The Government must show that the defendant:

  • agreed . . . to an exchange with another person under which
  • the defendant knowingly distributed child pornography to that other person
  • for the specific purpose of obtaining something of valuable considerations
  • from that same other person.

Appeal from the Eastern District of Virginia
Opinion by Wynn, joined by Niemeyer and Floyd

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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