Charles Bernard Long pleaded guilty to possession of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B). At sentencing, the district court held Long accountable for 22 images and 238 videos. Relying on commentary to the Sentencing Guidelines, the court treated each video as containing 75 images, which pushed the total count to 600 or more and triggered a five-level enhancement under U.S.S.G. § 2G2.2(b)(7)(D). Long appealed, arguing that the district court plainly erred by deferring to the commentary rather than applying the correct legal standard for counting images in videos.
The court acknowledged that its prior decision in United States v. Kluge established that the term 'image' in § 2G2.2(b)(7) unambiguously means 'frame,' not the video file itself. The court noted that 'images' as used in the guideline is plain and unambiguous, and there is no doubt that 'image' means 'frame' in the context of a video. Consequently, the district court erred by deferring to the commentary's 75-image-per-video rule. However, because Long raised this objection for the first time on appeal, the court reviewed the claim for plain error. Under this standard, the burden rests with the defendant to show a reasonable probability that, but for the error, the outcome of the proceeding would have been different. Long argued only for a one-video-one-image rule, which the court had already rejected in Kluge. The court found no conceivable grounds to conclude that the one-frame-one-image rule would result in a lower number of images than the 75-image-per-video rule. In fact, the court reasoned that a 30-second video at 24 frames per second contains more than 600 frames on its own. Given that Long possessed 238 videos, some up to 25 minutes long, the court saw no genuine possibility that applying the correct standard would result in fewer than 600 images. Therefore, the error did not affect Long's substantial rights.
Long's 78-month sentence remains in effect. The decision clarifies that while the 75-image-per-video commentary is no longer valid for calculating image counts, defendants must still prove that applying the correct one-frame-one-image rule would have lowered their sentence to avoid a plain error finding. In cases involving substantial video files, the one-frame-one-image rule often results in a much higher image count than the old commentary, making it difficult for defendants to show prejudice.
Podcast (federal-narrative-summaries): Play in new window | Download