Child molestation is not a legal term used in federal sentencing guidelines. There are, however, several offenses related to criminal sexual abuse of a minor. These range from statutory rape to trafficking child pornography. The federal sentencing guidelines are a somewhat complex system that attempts to quantify elements of the crime to produce a fair and uniform sentencing system. The U.S. Supreme Court ruled in 2005 that federal sentencing guidelines are not binding on judges but can be used for reference.
Components of Sentencing
Federal sentencing guidelines have two major components. First is the crime itself. Each offense identified in the sentencing manual is assigned a base offense level, with the higher levels signifying greater criminal severity. The offense level can be adjusted up or down by certain aggravating factors, such as use of a weapon, or mitigating factors, such as acceptance of responsibility (see "Relevant Conduct" in the Resources section below). The second component is the offender's criminal history. Based on the number and nature of previous conditions, the criminal history is assigned to one of six categories. The offense levels and history categories are used to make a sentencing table, which provides sentence ranges in terms of months of incarceration (see "Federal Sentencing Table" in the Resources section below).
Sex with a minor under the age of 16 is statutory rape under the definition of Chapter 2A3.2 of the federal sentencing guidelines. The crime is given a base offense level of 18. If the minor was in the custody, care or supervision of the offender, or if the offender misrepresented his identity to coerce the minor, the offense level is raised by four. If a computer or interactive electronic device was used to persuade the minor or solicit the sex, the offense level is raised by two.
Sexual Exploitation of Minors
Chapter 2, Part G, Section 2.1 through 2.6 of the federal sentencing guidelines detail acts classified as the sexual exploitation of minors. Showing the minor sexually explicit visual or printed material, permitting him or her to engage in sexually explicit conduct or advertising for minors to engage in production of such material carries a base offense level of 32. Trafficking in material involving the sexual exploitation of a minor or possession with intent to traffic has a base offense level of 18 or 22. Selling or buying children for use in the production of pornography is a base offense level of 38. Participation in a child exploitation enterprise has a base offense level of 35. All of these base levels are adjusted upward if the minor was especially young (under 12) or if a computer was used.
Career Offenders and Criminal History
Under Chapter 4, Section B1.1, a career sexual offender is one who was at least 18 years old when he committed a felony crime of violence or involving child pornography, with at least two prior felony convictions involving child pornography or violence. For a career offender, the offense level for the current crime is automatically increased by five and cannot be lower than 22. This is separate from the criminal history component of sentencing. To determine criminal history, three points are assigned for each prior sentence greater than a year and one month, two points are assigned for any other prior sentence of at least 60 days, and one point is assigned for any remaining sentences. Additional points are assigned for offenses that occurred during probation or within two years of being released from prison. The criminal history points are then classified as shown in the Federal Sentencing Table (see the Resources section below).
In 2005, the Supreme Court simultaneously announced two rulings that altered federal sentencing. In United States v. Booker, the court held a provision of the sentencing guidelines to be unconstitutional because it allowed a judge to consider facts not proved in front of a jury. This ruling could potentially have undermined the entire sentencing guidelines. In United States v. Fanfan, however, the judges explained that the guidelines should nevertheless represent the basic approach to federal sentencing even though judges are not obligated to apply them strictly. The Federal Sentencing Guidelines Manual continues to be updated. In 2008, for example, the rules were amended to allow multiple counts of possession, receipt or transportation of child pornography to be grouped together (Chapter 3, Part D, Section 1.2).
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