A lawyer for a man sentenced to nearly 16 years in prison for distributing child pornography argued today in a federal appeals court in Washington that a sentence enhancement in the case was improper.
The lawyer, Beverly Dyer of the D.C. Federal Public Defender office, said Allen Love did not intend to entice a minor to engage in a sex act by sending child pornography over the Internet to a person with whom Love was chatting. (The person was an undercover detective who was posing as the father of a 10-year-old girl.)
The sentence enhancement, Dyer argued, was improper because it was based on Love’s sending of an image of adult, not child, pornography. Dyer also argued Love did not distribute that material with the intent to entice any minor to engage in a prohibited sex act. There was no connection between Love’s sending images to the undercover detective and Love’s desire to have sex with a minor, Dyer said.
Judges Thomas Griffith and Douglas Ginsburg of the U.S. Court of Appeals for the D.C. Circuit, sitting with Senior Judge Laurence Silberman, questioned the argument about intent, saying that the intent to entice doesn’t have to be simultaneous with the sending of images. A person can articulate later on the purpose of sending the images. Griffith said there’s no question what Love wanted.
Dyer also argued whether the minor—a fictitious 10-year-old girl—fit the definition of a minor for purposes of enticement. The undercover detective never specifically said he was offering the girl for a sex act, said the defense lawyer. Assistant U.S. Attorney Courtney Spivey said there were “implicit” representations that the detective would provide the girl to Love.
In 2007, U.S. District Judge Reggie Walton sentenced Love to nearly 16 years in prison. Love pleaded guilty to one count of distributing child porn. His court-appointed lawyer had argued for an seven-year sentence, saying that Love, a former truck driver, had never before been sentenced to prison and that he had cooperated in the investigation.
The question of whether distribution of an otherwise legal adult pornographic image can be the basis for a sentencing enhancement is one of first impression, Spivey said in court today. She went on to concede that use of the adult image alone to enhance a sentence is not enough.
Love is forbidden to have any direct or indirect contact with minors for the rest of his life. The appellate judges questioned whether the scope of this condition was properly articulated to Love at the time Judge Walton pronounced judgment in court. Silberman asked whether Love is allowed to go to a movie where there might be patrons under the age of 17.