Court Was Correct to Enhance Child Pornography Sentence With Prior Statutory Rape Conviction – U.S. v. Barker

In all parts of criminal law, having a prior conviction is bad news if you are facing a new criminal charge. In child pornography possession cases, a prior conviction can cause a dramatic change in the defendant’s likely prison time. There is no mandatory minimum for child pornography possession alone, but a prior conviction for any of several offenses bumps the mandatory minimum up to 10 years. It also doubles the statutory maximum to 20 years. And because it’s almost inevitable that possessors will also be eligible for a receipt charge or a sentence enhancement for using a computer, the sentence often gets even longer. The mandatory minimum came into play in U.S. v. Barker, in which Richard Barker of Vermont challenged the use of a prior statutory rape conviction to enhance his child pornography possession sentence. He was unsuccessful. Barker’s prior conviction was in 2002 in Vermont state court, for statutory rape of a minor under the age of 16. Barker was 56 when convicted on that charge, and remained on probation when indicted for possession and distribution of child pornography. Details of that offense weren’t included in the opinion. Barker ultimately pleaded guilty to one count of possession. Prosecutors calculated his sentence range by including the statutory rape charge as a prior offense, but Barker argued against this, saying Vermont’s statute was not for “abusive sexual conduct” because it didn’t require a significant age disparity. Based on a 2012 Second Circuit case, the district court used a modified categorical approach to conclude that Barker was wrong, because there had been a significant age disparity in his prior case. It imposed the mandatory 10-year minimum. The Second Circuit upheld the sentence, though it ruled that the district court should have used a categorical approach to determining whether the Vermont law triggered the mandatory minimum. To get the sentence enhancement, the offender must have been convicted of an offense “relating to aggravated sexual abuse, sexual abuse, or abusive sexual contact involving a minor.” By applying the modified categorical approach, the district court used the charging document in Barker’s prior case. But the Second Circuit had ruled shortly after Barker’s sentencing hat courts should use a categorical approach in his situation, and the U.S. Supreme Court later affirmed this approach. However, Barker fared no better under the categorical approach, the Second ruled. Considering the offense generically, without the details of Barker’s case, it concluded that the law relates to sexual abuse of a minor. This is adequate to trigger the mandatory minimum, the court said; contradictory federal laws do not apply. Mandatory minimums don’t just apply to cyber crimes or sex crimes, but they’re particularly devastating in child porn cases, because the sentences for child pornography possession and related crimes are already very high. Congress has repeatedly raised them over the past two decades, which triggered a recent report from the U.S. Sentencing Commission suggesting significant modifications. It has also triggered disobedience from a few federal judges who have declined to issue long sentences in cases of simple possession. Though the sentencing guidelines are advisory, they retain so much influence on the courts that I believe a revision is vital to make child porn sentencing fair and consistent.