United States v. Reingold, No. 11-2826 (2d Cir. 2013)Annotate this Case
Defendant pleaded guilty to one count of distributing child pornography. On appeal, the United States appealed from that part of the judgment sentencing defendant to 30 months' incarceration. The court concluded that the application of the five-year minimum sentence mandated by 18 U.S.C. 2252(b) was not so grossly disproportionate to the crime here as to be precluded in this case by the Cruel and Unusual Punishment Clause of the Eighth Amendment, and, in exercising its sentencing discretion in this case, the district court could not impose a lesser prison sentence than the statutorily mandated minimum. The court also concluded that, in calculating a defendant's Sentencing Guidelines range for distributing child pornography, a pattern enhancement under U.S.S.G. 2G2.2(b)(5) applied to a defendant who committed any two acts fitting the Guidelines definition of "sexual abuse or exploitation of a minor," without regard to the temporal proximity of those acts, the defendant's own minority at the time of such acts, or mitigating circumstances; because a computer was not essential to the crime of distributing child pornography, the computer-use enhancement provided in U.S.S.G. 2G2.2(b)(6) did not constitute impermissible double counting; and because neither the statute of conviction nor the applicable Guideline was limited to distribution crimes, the distribution enhancement under 2G2.2(b)(3)(F) did not constitute impermissible double counting. Accordingly, the court reversed and remanded for resentencing.