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U.S. v. MCVEY, NO. 13-4285

Decided: April 23, 2014

The Fourth Circuit affirmed Terry McVey’s seventy-eight-month sentence, holding that the district court did not clearly err when applying a two level sentencing enhancement to his distribution of child pornography conviction.

In December of 2010, McVey began emailing a man that he believed to be the stepfather of three minor girls, ages eight, eleven, and fourteen.  For several months McVey emailed the man, who was actually an undercover police officer, and expressed his interest in performing sexual acts with the minor girls.  In response to McVey’s request for a video of the girls, the undercover officer mailed McVey a DVD containing child pornography in exchange for $10.  On July 28, 2011, when the DVD arrived at McVey’s residence, police executed a federal search warrant and discovered child pornography on his computer.  During an interview, McVey was forthcoming about his activities and admitted to purchasing the DVD, possession and distribution of child pornography over the previous ten years, and to uploading child porn at least six times.  Further investigation revealed that on December 31, 2008 McVey uploaded child pornography; despite his confession, this upload is the only documented instance of McVey’s distribution of child pornography.  McVey pled guilty to one count of knowingly possessing images and videos of child pornography that had been shipped and transported through interstate commerce.  During sentencing, McVey received and accepted multiple sentence enhancements, but objected to the sentence enhancement for distribution of child pornography.  McVey argued that because so much time passed between the conduct that led to his arrest and when he uploaded the video, the upload was not relevant conduct to the offense.  The district court rejected McVey’s argument and applied five sentencing enhancements, including the distribution of child pornography.

The Court determined that the district court had sufficient evidence to conclude that the distribution conduct was part of the same course of conduct as the conviction, despite the significant passage of time.  First, McVey admitted to uploading child pornography at least six times, which supports that the crimes were an ongoing, single course of conduct.  Second, possession and distribution are tightly connected crimes; possession is a prerequisite of distribution, and they share a common purpose.  Lastly, McVey admittedly possessed child pornography for an ongoing period of at least ten years, and distributed porn at least six times throughout that period.  With these facts, the Court concluded that a court could reasonably find that McVey’s distribution was in the same course of conduct as his possession conduct.

Full Opinion

-Amanda K. Reasoner