Sixth Circuit in Case of First Impression Holds That Duplicate Digital Images May Be Counted For Sentencing Enhancement

• UNITED STATES OF AMERICA v. TIMOTHY MCNERNEY

Defendant McNerney contends that only unique digital images, not duplicate digital images should be counted in computing an enhancement under the Sentencing Guidelines. This issue is a question of first impression for the Sixth Circuit. There is almost no case law on this question in other circuits either.


The Guidelines provision at issue is § 2G2.2(b)(7), providing for a sentence enhancement  based on the number of images involved in the crime.

Congress enacted the Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today Act (“PROTECT Act”), which “made several changes with respect to the child pornography guidelines and contained provisions by which Congress for the first and only time to date, directly amended the guidelines.”   

The PROTECT Act of 2003 instructed the Commission to amend § 2G2.2 to include the number-of images enhancements, which are currently codified at § 2G2.2(b)(7) and range from two levels to five levels.”   Thus, “[i]n 2003, pursuant to the Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today Act (“PROTECT Act”), the Commission again revised the guidelines covering child pornography offenses,” and added the quantity of images enhancement mandated by the PROTECT Act.  History of the Child Pornography Guidelines.
The Supreme Court has stated that “Congress, of course, has the power to fix the sentence for a federal crime.”  Mistretta v. United States, 488 U.S. 361, 364 (1989); see also United States v. Evanouskas, 386 F. App’x 882, 884 (11th Cir. 2010).  Thus, “[n]othwithstanding the delegation of authority provided to the Commission in the [Sentencing Reform Act], Congress retained ultimate authority over the federal sentencing guidelines . . . . Congress [thus] retains the ability to influence federal sentencing policy by enacting directives to the Commission,” History of the Child Pornography Guidelines, supra, at 5-6, “which the Commission is obliged to implement.

In other cases duplicate hard copy images are counted separately for § 2G2.2(b)(7) purposes.  However, here McNerney argues that only unique digital images, not duplicate digital images, should be counted in determining a sentencing enhancement under this Guideline provision.

The court recognizes that § 2G2.2(b)(7) applies to possession of duplicate hard copy images, and that even in cases of simple possession of child pornography the court considers the quantity of images involved in the crime relevant to the measure of a defendant’s culpability. 

The Sixth Circuit holds here "that duplicate digital images, like duplicate hard copy images, should be counted separately for purposes of calculating a sentence enhancement pursuant to § 2G2.2(b)(7)."