United States v. McNerney
2011 U.S. App. LEXIS 3870
| 6th Cir. | 2011Background
- On February 20, 2007, federal agents obtained a valid search warrant to McNerney's residence after internet search evidence showed he shared 166 child-pornography files via a peer-to-peer program.
- Agents seized McNerney's computer; forensic analysis showed the file-sharing program installed and numerous child-pornography images in a shared folder accessible to others.
- McNerney had backed up his files to a second hard drive, creating an identical copy of the data, including the images.
- He was indicted December 10, 2008 for receiving/distributing real-minor child-pornography under 18 U.S.C. § 2252(a)(2) and possession under § 2252A(a)(5)(B); he pled guilty April 22, 2009.
- At sentencing (August 13, 2009), the district court assigned a total offense level of 30 after specific enhancements, including a five-level boost for more than 600 images.
- The district court adopted a 766-image count for § 2G2.2(b)(7), rejecting McNerney's argument that duplicates on two hard drives constituted double counting; the sentence imposed was 120 months plus 10 years of supervised release, which McNerney challenged on appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether duplicate digital images count for § 2G2.2(b)(7) | McNerney (McNerney) argues duplicates should not be counted separately. | McNerney argues only unique images should be counted. | Duplicates may be counted; the court affirms counting duplicates for § 2G2.2(b)(7). |
| Scope of § 2G2.2(b)(7) under congressional directives | The government relied on the statutes and notes to treat duplicates as separate. | McNerney contends the guidelines were not intended to treat duplicates distinctly. | Court finds § 2G2.2(b)(7) applies to duplicates consistent with congressional intent. |
| Proper interpretation of 'images' and Application Note 4 | Images are defined broadly; each depiction counts as an image. | Duplicates should be counted only once if identical. | Application Note 4 supports counting each depiction, including duplicates. |
Key Cases Cited
- Dorvee v. United States, 604 F.3d 84 (2d Cir. 2010) (congressional directives shaped § 2G2.2; empirical data limited)
- Grober v. United States, 624 F.3d 592 (3d Cir. 2010) (Child Pornography Guidelines driven by Congress directives)
- Gellatly v. United States, 2009 WL 35166 (D. Neb. 2009) (guidelines amended under congressional directive; court commentary)
- Sampson v. United States, 606 F.3d 505 (8th Cir. 2010) (duplicate digital images counted for § 2G2.2(b)(7))
- Borho v. United States, 485 F.3d 904 (6th Cir. 2007) (quantity-based enhancement in possession cases)
- Acosta v. United States, 619 F.3d 956 (8th Cir. 2010) (enhancement for number of items in possession upheld)