Charles Bernard Long pleaded guilty to possession of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B). At his sentencing hearing, the district court held him accountable for 22 images and 238 videos. The court applied a sentencing enhancement for possessing 600 or more images by treating each of the 238 videos as 75 separate images, totaling well over the threshold. Long appealed, arguing that the district court plainly erred by relying on the Sentencing Commission's commentary that a video 'shall be considered to have 75 images.' While his appeal was pending, the Eleventh Circuit issued a decision in United States v. Kluge, which held that the guideline text unambiguously requires counting each video frame as a single image, rendering the 75-image commentary rule inapplicable.
The court acknowledged that under its recent decision in United States v. Kluge, the district court erred by deferring to the commentary's 75-image-per-video rule. Kluge established that the term 'image' in the guideline unambiguously means 'frame' in the context of a video. However, because Long raised this objection for the first time on appeal, the court reviewed the claim for plain error. To succeed, Long had to demonstrate that the error affected his substantial rights, meaning there was a reasonable probability that the outcome would have been different. The court found that Long failed to meet this burden. He argued only for a one-video-one-image rule, which the court had already rejected in Kluge. The court reasoned that the correct one-frame-one-image standard would likely result in a significantly higher image count than the 75-image rule. For instance, a standard 30-second video contains over 600 frames. Since Long possessed 238 videos, some up to 25 minutes long, applying the correct standard would almost certainly result in a total image count far exceeding 600. Consequently, the error did not affect the sentencing outcome, as the enhancement would have applied regardless of the calculation method.
The decision affirms the 78-month sentence, leaving the district court's calculation method in place for this defendant. It reinforces the Kluge standard that video frames count as individual images but clarifies that a defendant cannot claim relief on plain error grounds if the correct standard would have increased their image count and sentencing exposure. The ruling effectively closes the door on appeals based on this specific calculation error when the defendant's possession involves lengthy videos that would generate thousands of frames.
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