In United States v. Cunningham, the defendant made several interesting arguments on appeal concerning his child pornography sentence, but the Sixth Circuit affirmed the sentence. 669 F.3d 723 (6th Cir. 2012). These appellate court held:
- The § 2G2.2 enhancements are reasonable despite defendant's arguments concerning how often they are applied and lack of empirical grounding.
- The sentencing court preparing its opinion prior to the hearing was "disconcerting" but okay because the court had "carefully scrutiniz[ed] the parties' arguments and evidence."
- Reliance on recidivism data was reliable despite being applied in nearly every child pornography case. The defendant argued that he had a low risk of recidivism because he had "voluntarily delete[d] his child pornography." Defendant had been severely depressed, but the court noted that most people with depression "do not resort to online communities of child pornography to address their loneliness."
- Defendant's psychological assessment showing multiple disorders did not entitle him to a lower sentence. The court found that the report did not distinguish him from people who have had depression that did not resort to viewing child pornography.
- A video showing the defendant using a picture of a child to act out a sexual fantasy was properly used as evidence. This information was helpful to understanding his "history and characteristics" and potential danger to children in the future.
- Argument that the district judge sentenced the defendant "on the basis of passion and outrage" after viewing the defendant's child pornography collection was insufficient. It was appropriate for the judge to view the images, and the judge's shock was understandable.
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