United States v. Larkin
2010 U.S. App. LEXIS 25255
| 3rd Cir. | 2010Background
- Larkin pled guilty to 18 U.S.C. §2251(a) for producing child pornography involving her daughters.
- Photographs of M.M. (2) and B.L. (5) were created and traded with known pedophiles via the internet under the screen name “neon-angeleyes.”
- Indictment also charged travel in interstate commerce with intent to engage in sex with M.M.; plea anticipated guideline range 121–151 months absent an applicable minimum.
- District Court found B.L. to be a second victim, applying a §2G2.1(c)(1) enhancement and other guidelines while rejecting certain enhancements; ordered a 360-month sentence.
- Larkin appeals, arguing (1) B.L.’s photos are not sexually explicit to support a second-victim enhancement, (2) plea agreement breach, (3) ex post facto concerns with a five-level upward departure under §5K2.0, and (4) the sentence is unreasonable.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Are B.L. photographs sexually explicit under §2256(2)(B)(iii)? | Larkin argues B.L. images are not lascivious. | The government contends the images meet lascivious criteria under Dost and Villard. | Yes; photographs four and five meet lasciviousness, justifying second-victim status. |
| Did the government breach the plea agreement by briefing on §2G2.1(b)(3)? | Larkin contends Paragraph 11/27 limit government’s conduct; briefing violated the agreement. | Government acted within Paragraphs 11/27 by providing information relevant to sentencing; no breach. | No breach; briefing fell within the plea agreement. |
| Did the government breach by submitting a psychologist’s letter for the PSR? | Letter to PSR violated how the plea promised information would be used. | Letter was relevant to impact on victims and within victims’ rights; not a breach. | No breach; letter was permissible under Paragraph 17 and victim-notice provisions. |
| Does applying an upward departure under §5K2.0 violate ex post facto? | Departure relies on a later amendment to §2G2.1; argued impermissible under ex post facto. | Court may use later amendments as sentencing factors; not improper application. | No ex post facto violation; departure was properly justified under the older guidelines and related amendments. |
| Is Larkin’s sentence reasonable? | Sentence excessive given cooperation and comparator with co-defendant King. | District Court properly calculated, explained, and weighed §3553(a) factors; not abuse of discretion. | Yes; sentence is reasonable given the circumstances and substantial deviations were supported. |
Key Cases Cited
- United States v. Dost, 636 F.Supp. 828 (S.D. Cal. 1986) (six-factor framework for lascivious conduct (Dost factors))
- United States v. Villard, 885 F.2d 117 (3d Cir. 1989) (adoption of Dost factors for lasciviousness review)
- United States v. Knox, 32 F.3d 733 (3d Cir. 1994) (defines lascivious exhibition and supports analysis of photos)
- United States v. Wiegand, 812 F.2d 1239 (9th Cir. 1987) (photos intended to elicit sexual response may constitute lasciviousness)
- Doe v. Chamberlin, 299 F.3d 192 (9th Cir. 2002) (cautions that Dost factors are not exhaustive)