United States v. Fulford, No. 10-12916 (11th Cir. 2011)Annotate this Case
Defendant was convicted of distribution of child pornography to an unidentified person, not connected with law enforcement, who convinced him that she (or he) was a minor. The district court applied the distribution to a minor enhancement under U.S.S.G. 2G2.2(b)(3)(C) after concluding that the actual age of the recipient, which had never been determined in the case, did not matter so long as defendant thought that the recipient was a minor. The court held that defendant's belief that the recipient was a minor at the time he sent her the child pornography was not enough to justify the enhancement and that the government must prove that the recipient was under the age of 18 years at the time. Therefore, the court vacated defendant's sentence and remanded to the district court to make a finding regarding whether the government had proven by a preponderance of the evidence that at the time defendant sent the child pornography, the recipient was 18 years of age. If the district court found that the government had not carried its burden of proving that fact, about which the court expressed no view, it should resentence defendant without the section 2G2.2(b)(3)(C) enhancement.