Fifth Circuit Affirms Sentence In Child Pornography Case Despite Dispute Over Intent to Send – U.S. v. Goluba

February 27, 2012 by David S. Seltzer

As a child pornography possession criminal defense attorney, I know my clients often come to law enforcement’s attention after an investigation or charge for a different but related crime. Because of the emotional nature of child porn investigations, some of this information can find its way into evidence even when it’s irrelevant to the charges the defendant ultimately faces, and even into the sentencing. That seemed to be the case in United States v. Goluba, in which the solicitation of a child online led law enforcement to discover child pornography in the home of David Goluba of Arlington, Texas. Goluba pleaded guilty to child pornography receipt charges. Nonetheless, for sentencing purposes, the court did not apply a sentence reduction for only possessing, with no intent to distribute, finding that his choice to send a sexually explicit photo to a ten-year-old in Minnesota supported a finding of intent to distribute.

The mother of the ten-year-old contacted local police when she discovered a sexually explicit chat with Goluba. In one exchange, he called the girl’s attention to his profile picture on the site, which showed him sitting in a chair with the tip of his erect penis visible. In a followup visit from Arlington police, Goluba, 43, admitted to the conversation, possession of child pornography, and other behaviors suggesting sexual interest in children, and a search of his home turned up roughly 31,000 images and videos of child pornography. Goluba fled but was later found and arrested, then pleaded guilty with no plea agreement. He objected to the presentencing report before sentencing, arguing that he merited a two-level decrease because his conduct was “limited to the receipt or solicitation” of child pornography. Prosecutors disagreed, saying Goluba had sent a sexually explicit image to the Minnesota girl and thus his conduct was not limited to possession. The district court agreed.

Goluba appealed to the Fifth U.S. Circuit Court of Appeals, but that court upheld the sentence, finding that his conduct was not limited to receipt of child pornography. Goluba’s argument noted that the picture he called the girl’s attention to did not depict sexual conduct by a minor, but rather, was a sexually explicit picture of himself. Thus, he said, the picture did not disqualify him from the sentence reduction under the language of the sentencing guidelines. The Fifth Circuit found that this put the emphasis on the wrong part of the guidelines. It emphasized the word “conduct” in the guidelines and found that conduct must refer to the totality of his behaviors, not just the charged offense. It cited a case finding that unindicted conduct may be considered as long as it is relevant conduct as defined by the guidelines. Nor do the sentencing guidelines require that surrounding conduct be limited to behaviors related to child pornography, the court wrote.

As a child pornography criminal defense lawyer, I suspect another court could have come to a different conclusion with the same amount of support. The court may be required to honor the caselaw allowing unindicted conduct to be considered, but it viewed the issues in a way that was least favorable to the defendant. For example, Goluba used the sexually explicit image as a profile picture, which means everyone on the site saw it; he “sent” to the girl to the same degree that he “sent” it to everyone else. In addition, the court’s finding that the sentencing guidelines don’t require surrounding conduct to be limited to child pornography conduct, but this is a very loose standard that doesn’t guide district courts on how to apply the sentencing guidelines uniformly and fairly. As a cyber crime criminal defense attorney, I hope other courts have a chance to review this issue and consider it carefully.

If you’re facing a serious criminal charge related to computers, technology or the Internet and you’d like to discuss it with an attorney who understands cyber crime, call Seltzer Law, P.A., today. Lead partner David Seltzer is a former cyber crime prosecutor in Florida and has substantial experience with federal and state online crimes. For a free, confidential case evaluation, call us today at 1-888-THE-DEFENSE (1-888-843-3333) or send us a message online.

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