Eighth Circuit Rules Defendant Not Entitled to Shorten Sentence for Enticing a Minor – U.S. v. Hammond

November 6, 2012 by David S. Seltzer

As I’ve written many times in this space, the sentencing guidelines for Internet sex crimes involving children call for very harsh sentences. Defendants routinely get 10 to 20 years in prison, which is why so many end up appealing their sentences, even when they don’t appeal the underlying conviction. In United States v. Hammond, Adam Hammond of Missouri appealed his sentence for two counts of enticement of a minor, for sexual activity and for the purpose of creating child pornography. Hammond’s sentence was enhanced because the minor in his case was under the age of 12, although she told Hammond she was 13. He argued that he should have been granted a downward variance from the sentencing guidelines as a result, but the Eighth U.S. Circuit Court of Appeals disagreed.

The opinion does not go into detail about Hammond’s crime, though it says the victim was 11 years old for most of the time he was committing it. He eventually pleaded guilty to enticement of a minor for the purpose of engaging in prohibited sexual activity and enticement of a minor for the purpose of creating a visual depiction of such conduct; the reader may surmise that he attempted or achieved those acts. More importantly for the purpose of the appeal, however, Hammond believed she was 13. Because she was actually 11, the court applied a sentencing guideline enhancing the sentence when the crime involves a minor under age 12. The parties agree that this applies even when the defendant doesn’t know the minor’s true age, but Hammond argued at sentencing that his genuine belief that she was 13 should allow the court to depart downward from the sentencing guidelines. It declined to do so and sentenced him to nearly 20 years in prison.

Hammond’s appeal argued that because he believed the girl to be older, his sentence is unfairly in the same range as sentences for adults who intentionally seek out victims under the age of 12. Because he did not, he argued, he should be distinguished from those offenders and sentenced differently from them. The Eighth Circuit was not convicted. It said the trial judge adequately considered the factors it must consider to come to a reasonable conclusion, including the seriousness of the crime, the need for deterrence and the need to protect the public. In particular, the appeals court cited the judge’s statements that he saw only a small difference between 11, 12 and 13 compared to the adult Hammond. This showed that the judge adequately considered Hammond’s ignorance of the girl’s age, the court said. Thus, it upheld the district court.

As a criminal defense attorney who handles a lot of cyber crime cases, I sympathize with Hammond’s argument. Though judges may not see a lot of difference between 11 and 13, many defendants do—and more importantly, the sentencing guidelines draw an important distinction between the two ages. Furthermore, the guidelines are written in a way that doesn’t take into account what the defendant actually knew, only the calendar age, giving judges less flexibility to account for situations like this. When this was written, it likely sounded like a good way to penalize people who exploit young girls, but the result in this case doesn’t quite match the intentions.

If you’re facing criminal charges related to computers, technology or the Internet, you’re facing serious penalties. Don’t hesitate to call the experienced cyber crime defense attorneys at Seltzer Law, P.A. We answer client calls 24 hours a day and seven days a week at 1-888-THE-DEFENSE (1-888-843-3333), or you can send us a message through our website.

Similar blog posts:

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Sixth Circuit Denies New Trial to Child Porn Defendant Who Never Got Clear List of Charges – U.S. v. Tillotson