United States v. Fulford
2011 U.S. App. LEXIS 22798
| 11th Cir. | 2011Background
- Fulford pleaded guilty to possession and receipt/distribution of child pornography and was subject to a 5-level enhancement for distribution to a minor under § 2G2.2(b)(3)(C).
- The recipient named Dawn claimed to be a 13-year-old but Dawn’s actual age was never established.
- The district court applied the enhancement based on Fulford’s belief that he transmitted to a minor, extending reasoning from cases involving fictitious minors.
- The guideline commentary defines minor in three ways, including actual under-18, or fictitious/undercover scenarios involving law enforcement.
- The court vacated and remanded to determine whether Dawn was actually under 18, rather than relying on Fulford’s belief alone.
- Fulford’s sentence was vacated and remanded for a factual finding on Dawn’s actual age.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was Dawn a 'minor' under § 2G2.2(b)(3) applicable to Fulford? | Government: Fulford’s belief suffices because Dawn impliedly was a minor. | Fulford: Only actual age matters; no proof Dawn was a minor. | Not proven; Dawn not established as minor; remand for age finding. |
| Does the § 2G2.2(b)(3)(C) definition of 'minor' include persons the defendant believes are under 18 absent LE involvement? | Government seeks broader interpretation consistent with Murrell/Lebovitz roots. | Fulford: Guidelines define minor narrowly; cannot expand by belief. | No expansion; restrict to defined categories in the commentary. |
| Are Root, Murrell, Lebovitz precedents controlling for this minor-definition question? | Government: those decisions support treating belief about age as sufficient. | Fulford: those decisions are distinguishable or inapplicable here. | Not controlling; scope limited by the specific guidelines and definitions here. |
Key Cases Cited
- United States v. Murrell, 368 F.3d 1283, 368 F.3d 1283 (11th Cir. 2004) (addressed intent versus victim age in applying a different enhancement)
- United States v. Lebovitz, 401 F.3d 1263, 401 F.3d 1263 (11th Cir. 2005) (defined 'victim' to include fictitious minors in a related guideline context)
- United States v. Root, 296 F.3d 1222, 296 F.3d 1222 (11th Cir. 2002) (held that certain sting-operation scenarios could bind application of an enhancement)
- United States v. Jerchower, 631 F.3d 1181, 631 F.3d 1181 (11th Cir. 2011) (amendment addressing when minor is undercover officer; influenced by Amendment 732)
- United States v. Fulford, 662 F.3d 1174, 662 F.3d 1174 (11th Cir. 2011) (appeal defining 'minor' under § 2G2.2(b)(3) and remanding for factual age finding)