Child porn is a crime that garners revulsion and little immediate sympathy from judges, jurors, prosecutors and the public. As a Fairfax criminal lawyer who defends such cases in Virginia, I know how vital it is to humanize the client (as with all criminal cases) and to provide an explanation for the behavior in the event of a conviction, together with a sensible, do-able and convincing psychological treatment plan to reduce the risk of reoffending.

Child porn – Fairfax, Virginia criminal lawyer warns about sentencing

I have previously addressed defenses against child porn prosecutions (here and here, for instance). Today, I address the harsh sentencing risks from a child porn conviction.

Child porn sentencing risks are tremendously harsh

The state and federal advisory sentencing guidelines are harsh for child pornography possession, and even harsher for child porn distribution. As a Virginia criminal lawyer, I know that a child pornography case can become a child pornography distribution case not only through emailing or handing child porn to another person, but also by posting child pornography on sharing sites and anywhere else on the Internet where others will be able to view the images. I also know that multiple sessions on the Internet with child porn enables multiple counts, even hundreds of counts, against the defendant. The sentencing risks for distribution of child porn are much higher than for mere possession.

Julian Alexander Zuk at first is a tremendously unsympathetic child pornography distribution defendant. His appellate opinion characterizes a man fixated not only on prebuscent children and others, but also on imposing torture on them while being photographed. Zuk curated thousands of child pornography images. He readily admitted to law enforcement that he was involved with child porn. U.S. v. Zuk, ___ F.3d ___ (4th Cir., Oct. 24, 2017).

At first blush, Zuk was lucky that he was able to strike a guilty plea deal for only one count of child porn distribution. However, look how quickly Zuk’s voluntary federal sentencing guidelines went through the roof:

“Calculating the recommended sentence, the probation officer began with a base offense level of 32 and applied (1) a 4-level enhancement because the offense involved a minor under the age of 12; (2) a 2-level enhancement because the offense involved the commission of a sexual act or sexual contact; (3) a 2-level enhancement because the offense involved distribution; (4) a 4-level enhancement because the offense involved material portraying sadistic or masochistic conduct or other depictions of violence; and (5) a 3-level reduction for acceptance of responsibility, for a total offense level of 41. For an offense level of 41 and Criminal History Category I, as was the case for Zuk, the recommended sentencing range was 324 to 405 months’ imprisonment.”

Zuk. 

After a multi-day sentencing hearing with multiple expert witnesses, the court sentenced Zuk to 26 months active incarceration time, versus his 324 to 405 months of prison time provided in the federal sentencing guidelines. The maximum statutory sentence capped his highest possible prison sentence at twenty years.

When a federal judge departs substantially below the federal sentencing guidelines, be ready for a possible prosecutorial appeal

Particularly with the pro-harsh sentencing hand of Donald Trump’s current Attorney General Jeff Sessions, the prosecution appealed, and the United States Court of Appeals vacated Zuk’s sentence as too low, saying:

“This is one of the rare cases where we conclude that the sentence imposed by the district court was substantively unreasonable in light of the § 3553(a) factors and therefore must be vacated. See Rita, 551 U.S. at 341 (noting that courts of appeals must set aside sentences they find “unreasonable”). Zuk’s sentence to time served of 26
months is simply below the bare minimum necessary “to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment.” 18 U.S.C. § 3553(a)(2)(A).”

Zuk. 

Internet activity never is anonymous

No matter how anonymous people may feel while on the Internet, nothing could be farther from the truth. Our Internet activity is tied to a unique IP address that allows police easily to track down the source of the particular Internet activity. Child porn sentencing risks are extraordinarily high.

Fairfax criminal lawyer Jon Katz has successful experience defending clients charged with child porn and other online offenses, including working with computer forensic and forensic psychology experts. To discuss your case with Jon, please call his staff at 703-383-1100 to schedule a confidential appointment.