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Over the past decade, federal sentencing issues concerning child pornography have produced considerable legal debate, much of it focused on the application of federal sentencing guidelines as set forth by the United States Sentencing Commission (U.S.S.C.). Many judges have opined that the factors used to calculate the adjusted offense level for some child pornography offenses may be out of date, impracticable, and/or in conflict with 18 U.S.C. 3553(a), which requires, among other things, “just punishments.” Particular concerns have been expressed that strict application of the sentencing guidelines can produce results in which possessors of child pornography (i.e. those who commit less serious child pornography offenses as compared to producers or distributers) may be sentenced near the statutory maximum. This has caused some judges to inquire into the rationality of guidelines which they argue place even the less culpable offenders at the level of punishment reserved for the most serious of offenders.

Recognizing these concerns, the Department of Justice has asked the United States Sentencing Commission to re-evaluate and update the current guidelines to “better calibrate the severity and culpability of defendants’ criminal conduct” and “ensure that the sentences for certain child exploitation offenses adequately reflect the seriousness of the crimes...[and] changes in the use of technology and in the way these crimes are regularly carried out today...”

As the Sentencing Commission works to assess and resolve some of these concerns, some remain dissatisfied with the sentencing options for child pornography crimes. In response, some judges have attempted to wage a challenge on a new frontier: not the advisory sentencing guidelines, but the legislated mandatory minimum sentences. This article will examine this phenomenon and explore its potential vulnerabilities through an analysis of several recent cases, most notably the U.S. District Court opinion in United States v. C.R., issued in May 2011.

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