Fifth Circuit reverses CP sentencing enhancement due to government's failure to prove "relevant conduct"

The Fifth Circuit vacated and remanded a sentence due to an enhancement for possession of 277 images of child pornography because the defendant was charged with distribution and no evidence was presented that the additional images were "relevant conduct" under the guidelines. United States v. Teuschler, 2012 U.S. App. LEXIS 15284 (5th Cir. 2012).

The defendant had communicated with what he thought was a 13-year-old girl in an Internet chatroom, though in reality it was a police officer. Ultimately, he sent images of adult and child pornography, leading to his arrest and guilty plea of distribution of child pornography. At sentencing, three levels were added because a total of 277 images of child pornography were found on his computer.

On appeal, the defendant argued that the images found on his computer (other than the nine he transmitted) were not "relevant conduct" under the federal sentencing guidelines. The government countered that the images were "part of a 'common scheme or plan'" because the defendant's inventory of images could all be used to entice children and were "relevant conduct to the crime of distribution." The Fifth Circuit agreed with the defendant as there was no evidence of an ongoing scheme or that the images were possessed at the time of the act for which he was charged.