United States v. Jeffrey Price, 2014 U.S. App. LEXIS 22996

Background

Price, who had a history of sexually abusing children (including his sister and daughter R.P.), photographed R.P. (ages 10–12) in nude or scantily clad poses and put some photos on the Internet; investigators found hundreds of other child‑pornography images/videos on two computers.
Police obtained a state warrant for Price’s residence; during an on‑site interview Price signed a Springfield Police "Consent to Search" form for his Dell laptop after being told the officer lacked computer‑forensics training and other agents would perform the search.
Preliminary plain‑view review of the laptop revealed suspected child pornography; a federal warrant later authorized forensic exams of the laptop and a desktop, which produced hundreds of images and videos used at trial.
Price was convicted by a jury of production (18 U.S.C. § 2251(a)) and possession (18 U.S.C. § 2252A(a)(5)(B)) of child pornography; he objected to suppression (consent scope) and to the jury instruction defining "lascivious exhibition," which included the Dost factors.
At sentencing the guidelines recommended 40 years (constrained by statutory maxima); the district judge varied downward to 18 years (production) and concurrent 6 years (possession), citing policy disagreement with harsh child‑pornography guidelines. The government appealed the sentence as substantively unreasonable.

Issues

Issue	Price's Argument	Government's Argument	Held
Scope of consent to search laptop	Consent limited to an immediate search by the interviewing officer (not later forensic searches by others)	Consent reasonably encompassed a complete forensic search by trained agents; written form plus oral explanation authorized full search	Affirmed: objective‑reasonableness test; no plain error — consent covered later forensic search
Jury instruction: "lascivious exhibition" and Dost factors	Instruction legally erroneous, unconstitutionally overbroad under First Amendment, and misleading by incorporating Dost checklist; nudity required	Instruction correctly followed statutory meaning; Dost factors permissible as jury considerations; Stevens did not reclassify child pornography as protected speech	Affirmed: no plain error — instruction lawful, not overbroad; Dost factors allowed here though court discourages routine use
Requirement of full nudity for lasciviousness	Statute requires full exposure of genitals/pubis for "lascivious exhibition"	Statute contains no nudity requirement; "exhibition" includes showing or presenting to view even if partially covered	Affirmed: no nudity requirement in §2256(2)(A); instruction correct
Sentencing reasonableness (gov't cross‑appeal)	18‑year sentence substantively unreasonable; should be closer to 40‑year guidelines and consecutive terms	District court permissibly varied downward based on policy disagreement with guidelines and §3553(a) factors	Affirmed: no abuse of discretion — judge reasonably considered §3553(a) and policy objections to the guidelines

Key Cases Cited

Florida v. Jimeno, 500 U.S. 248 (objective standard for scope of consent search)
United States v. Dost, 636 F. Supp. 828 (S.D. Cal. 1986) (enumerated factors for evaluating "lascivious exhibition")
United States v. Stevens, 559 U.S. 460 (rejecting categorical new exceptions to First Amendment)
New York v. Ferber, 458 U.S. 747 (child pornography is categorically unprotected speech)
United States v. X‑Citement Video, Inc., 513 U.S. 64 (rejection of vagueness challenge to "lascivious")
Spears v. United States, 555 U.S. 261 (district courts may vary from Guidelines on policy grounds)
Kimbrough v. United States, 552 U.S. 85 (judicial discretion to disagree with Guidelines based on policy)
United States v. Dorvee, 616 F.3d 174 (2d Cir.) (critique of child‑pornography Guidelines as Congress‑driven and often overbroad)
United States v. Russell, 662 F.3d 831 (7th Cir.) (permitting consideration of Dost factors)
United States v. Noel, 581 F.3d 490 (7th Cir.) (discussion of Dost factors and Pattern instruction)