Federal Sentencing of Child Pornography: Production Offenses

United States Sentencing Commission
October 2021

FEDERAL SENTENCING OF

CHILD PORNOGRAPHY
PRODUCTION OFFENSES

i

Federal Sentencing of Child Pornography:
Production Offenses

CHARLES R. BREYER
Acting Chair

PATRICIA K. CUSHWA
Ex Officio

JONATHAN J. WROBLEWSKI
Ex Officio

KENNETH P. COHEN
Staff Director

OCTOBER 2021

United States Sentencing Commission

Federal Sentencing of Child Pornography: Production Offenses

Table of Contents
1

Introduction & Key Findings

12

Chapter One: Sentencing Framework

16

Chapter Two: Data Overview

26

Chapter Three: Proximity, Participation, and Propensity

44

Chapter Four: Sentencing Outcomes

54

Conclusion

58

Appendix

60

Endnotes

United States Sentencing Commission

''

This report focuses on offenders sentenced
under the production of child pornography guideline.
A companion report, Federal Sentencing of Child
Pornography: Non-Production Offenses (June 2021),
analyzes offenders sentenced under the nonproduction of child pornography guideline.

Federal Sentencing of Child Pornography: Production Offenses

Introduction
This publication updates and expands upon the United States Sentencing
Commission’s 2012 Report to the Congress: Federal Child Pornography Offenses (the
“2012 Child Pornography Report”) and builds upon the Commission’s recent report on
non-production child pornography offenses.
This publication is the second report
of a two-part series that updates and
expands upon the United States Sentencing
Commission’s 2012 Report to the Congress:
Federal Child Pornography Offenses (the “2012
Child Pornography Report”).1 In the 2012 Child
Pornography Report, the Commission analyzed
offenders sentenced under the federal child
pornography sentencing guidelines and their
corresponding statutes to assess how these
offenders were prosecuted, sentenced, and
supervised following their reentry into the
community. This report focuses on offenders
sentenced for child pornography production
offenses under §2G2.1 of the Guidelines Manual
(Sexually Exploiting a Minor by Production of
Sexually Explicit Visual or Printed Material;
Custodian Permitting Minor to Engage in
Sexually Explicit Conduct; Advertisement for
Minors to Engage in Production).2
The issues the Commission discussed in
the 2012 Child Pornography Report persist today:
the continued growth in the number of child
pornography production cases, the volume and
accessibility of child pornography images due to
advancements in technology, and the resulting
lengthy sentences for child pornography
production offenders. Notably, in 2020 alone,
the Cyber Tipline of the National Center for
Missing and Exploited Children received 21.7
million reports of child sexual abuse imagery,
online child exploitation and enticement, child
sexual molestation, and child sex trafficking.3

Child pornography production offenses
cause substantial and indelible harm to victims.4
Offenders who produce child pornography
use a variety of tactics to manipulate minors,
and most offenses involve sexual contact with
the victim. The typical production offender
maintains a position of trust over the victim
and has physical access to the child during the
production of child pornography. However, a
growing proportion of production offenders
exploit victims remotely through the use of the
internet and mobile devices.
This update to the 2012 Child
Pornography Report is intended to provide
stakeholders with current information on child
pornography production offenses, offenders,
and sentencing outcomes. This report provides
the Commission’s most in-depth study of child
pornography production offenses to date
through an analysis of three primary factors
that the Commission has identified as relevant
to sentencing child pornography production
offenders:

1

PROTECT Act of 2003
(1) Proximity: the physical proximity
and relationship between offenders and
victims, methods of communication used to
induce victims’ participation in the offense,
and whether offenders and victims lived in
the same household;
(2) Participation: the offender’s level
of involvement with victims during the
production offense, such as the method used
to produce the child pornography, whether
the offender engaged in sexual contact with
victims, or whether the offender manipulated
victims through incapacitation, coercion,
enticement, or misrepresentation; and
(3) Propensity: the offender’s level
of engagement in child pornography or
exploitive conduct in addition to the
production offense, such as whether the
offender distributed or collected child
pornography in addition to the production
offense or engaged in unrelated exploitation
or physical sexual abuse of a child.
The Commission’s analysis of
these three factors focuses, in part, on
the advancement of technology since the
2012 Child Pornography Report. Emerging
technology continues to create greater
opportunity for child pornography production
offenders to access and exploit minor
victims. The expansion of mobile and digital
technology has facilitated the production of
child pornography, including victim-produced
content. As computers and mobile devices
offer video capabilities and live streaming
functions, some offenders produce child
pornography from remote locations apart
from the victim. Focusing on data related
to child pornography production offenders’
proximity to the victim, participation in
production, and propensity to engage in
other abusive behaviors, this report provides
insight into how offenders exploit victims and
technology to produce child pornography
and the factors courts consider in fashioning
sentences for these offenses.

Congress increased the mandatory minimum
term of imprisonment from 10 to 15 years
for production of child pornography offenses
under 18 U.S.C. § 2251. As a result, the
Commission increased the base offense level
at §2G2.1 from 27 to 32.

2012 Child Pornography
Report
The 2012 Child Pornography Report analyzed
offenders sentenced under the federal child
pornography sentencing guidelines and their
corresponding statutes to assess how these
offenders were prosecuted, sentenced, and
supervised following their reentry into the
community.

Federal Sentencing of Child
Pornography:
Non-Production Offenses
The non-production report provides
data from fiscal year 2019 regarding the
content of the offender’s child pornography
collection and nature of the offender’s
collecting behavior; the offender’s degree of
involvement with other offenders, particularly
in an internet community devoted to child
pornography and child sexual exploitation;
and the offender’s engagement in sexually
abusive or exploitative conduct in addition to
the child pornography offense.

This Report
This report focuses on offenders sentenced
for child pornography production offenses
under §2G2.1 of the Guidelines Manual
(Sexually Exploiting a Minor by Production of
Sexually Explicit Visual or Printed Material;
Custodian Permitting Minor to Engage in
Sexually Explicit Conduct; Advertisement for
Minors to Engage in Production).

Federal Sentencing of Child Pornography: Production Offenses

Key Findings

1

Although child pornography
production cases comprise a
small percentage of the overall
federal caseload, the expansion of
digital and mobile technology has
contributed to a 422 percent increase
in the number of production offenders
sentenced over a 15-year period, from
98 offenders in fiscal year 2005 to
512 offenders in fiscal year 2019.

2

Child pornography production
offenders generally received
lengthy sentences. In fiscal
year 2019, production offenders
received an average sentence of
almost 23 years (275 months), ranging
from one year to life imprisonment.
Furthermore, over three-quarters
(78.0%) were convicted under a
statute carrying at least a 15-year
mandatory minimum penalty. A
majority of child pornography
production offenders, however,
received a variance below the
applicable guideline range (57.2% of
the 512 cases).

3

4

United States Sentencing Commission

3

A majority (56.6%) of child
pornography production cases
sentenced in fiscal year 2019
involved a single victim. However, a
substantial minority of cases (41.0%)
involved more than one minor victim,
ranging from two to 440 victims.

4

The typical production
offender maintains a position
of trust over the victim and has
physical access to the child during the
production of child pornography. Of
the 512 child pornography production
offenders sentenced in fiscal year
2019, 60.3 percent were related to
or otherwise maintained a position of
trust over the minor victim, whether
through familial relationships or by
virtue of the offender’s role as a
teacher or a coach, for example.

Federal Sentencing of Child Pornography: Production Offenses

5

Due to technological
advancements and the
changing nature of production
offenses, an increasing proportion
of production offenders exploited
victims remotely through use of
the internet or mobile devices. For
example, over one-third (35.4%) of
production offenders sentenced
in fiscal year 2019 were internet
strangers who met their victims
through an online platform, more than
double the proportion of offenders
sentenced in fiscal year 2010 who met
their victims online (14.3%).5

6

Child pornography production
offenders who were in closer
proximity to their victims—those
who communicated with them in
person—victimized younger children
compared to production offenders
who communicated remotely.
• Among offenders who
communicated with their victims in
person, the youngest victim in the vast
majority of cases was age 12 or younger
(83.5%), which included infants or
toddlers in nearly one-third of the cases
(30.3%).
• Conversely, the youngest victim
for nearly two-thirds (61.7%) of remote
child pornography production offenders’
victims were teenagers, who were more
likely to have access to the internet, cell
phones, or social media.

5

6

United States Sentencing Commission

7

The vast majority of fiscal
year 2019 child pornography
production offenders (80.9%)
were sentenced for an offense that
involved sexual contact of a minor.

8

88

Of the 512 child pornography
production offenders sentenced
in fiscal year 2019, 40 percent
incapacitated, coerced, or enticed
a victim, or misrepresented their
identity to a victim to facilitate the
offense.

Federal Sentencing of Child Pornography: Production Offenses

9

Although the average sentence
imposed was lengthy for child
pornography production
offenders (275 months), courts
imposed longer sentences (averaging
over 300 months) on offenders who:
• victimized infants or toddlers
(average sentences of 364 months and
330 months, respectively);
• were parents of victims (340
months, on average);
• engaged in or facilitated the sexual
contact of a minor during the offense
(307 months, on average); or
• incapacitated victims (313
months, on average).

7

8

United States Sentencing Commission

Methodology
Figure 1.
District Court Documents Received by the Commission

1
Charging Document

2

5
aStatement of Reasons

4

Plea Agreement

3

-

Judgment and Commitment
Order

To fulfill its statutory responsibilities,
the Commission collects and analyzes data on
federal sentences for every federal felony and
Class A misdemeanor offense sentenced each
year.6 Sentencing courts are statutorily required
to submit five sentencing documents to the
Commission within 30 days of entry of judgment
in a criminal case: (1) the charging document, (2)
the plea agreement, (3) the Presentence Report,
(4) the Judgment and Commitment order, and (5)
the Statement of Reasons form. The Commission

--

Presentence Investigation
Report

extracts and codes data from these documents
for input into various databases. For each case in
its Offender Datafile, the Commission routinely
collects sentencing data, offender demographics,
statutory information, the complete range
of court guideline application decisions, and
departure and variance information. This report
uses data from the Commission’s fiscal years
2005–2019 Offender Datafiles to provide
information on child pornography production
offenses.

Federal Sentencing of Child Pornography: Production Offenses

Figure 2.
Federal Offenders Sentenced in Fiscal Year 2019
FEDERAL OFFENDERS SENTENCED IN FY 2019
70,537

CHILD PORNOGRAPHY PRODUCTION OFFENDERS
512

The Commission also undertook an
extensive special coding project to collect and
analyze data on child pornography production
offenses and offender characteristics beyond the
information regularly collected in the Offender
Datafiles and reported in the Commission’s
annual Sourcebook of Federal Sentencing
Statistics. For this special coding project, the
Commission analyzed cases in which offenders
were sentenced under §2G2.1 in fiscal year 2019
under a Guidelines Manual effective November 1,
2004 or later, which totaled 512 cases for which
there was sufficient sentencing documentation
submitted to the Commission. The resulting data
provides a more complete picture of the offense
conduct and offender characteristics.

The special coding project examined
(1) the physical proximity and relationship
between offenders and victims; (2) the
offender’s participation or involvement with
minor victims during the production offense;
and (3) the offender’s propensity to engage in
child pornography activity or child sexual abuse
outside of the instant production offense. These
topics and additional information regarding the
methodology are discussed in this report.

9

Sentencing
Framework

Chapter

1

12

United States Sentencing Commission

Statutory Scheme
Production of Child Pornography under 18 U.S.C. § 2251
No prior sex offense
conviction

Prior sex offense
conviction

Two or more prior sex
offense convictions

15 to 30 years

25 to 50 years

35 years to life

Congress has long expressed its concern
for child pornography offenses, most recently
in the Prosecutorial Remedies and Other Tools
to end the Exploitation of Children Today
(“PROTECT”) Act of 2003, which established the
existing statutory penalties for child pornography
offenses.7 This chapter summarizes the statutory
and guideline sentencing scheme for child
pornography production offenses.
Federal statutes prohibit a variety of
acts related to the production, advertisement,
distribution, transportation, importation, receipt,
solicitation, and possession of child pornography
in chapter 110 of title 18 of the United States
Code.8 Child pornography production offenses
carry a mandatory minimum term of 15 years
of imprisonment and a maximum term of 30

years.9 If a child pornography production
offender has a prior federal or state conviction
for one qualifying sex offense, the penalty range
increases to a mandatory minimum term of 25
years of imprisonment and a maximum term of
50 years.10 Offenders convicted of production
of child pornography with more than one prior
federal or state conviction for a qualifying sex
offense are subject to a statutory imprisonment
range of 35 years to life.11
The PROTECT Act also created a
mandatory minimum term of supervised release
of five years and increased the maximum
statutory term of supervised release from three
years to a lifetime term of supervised release for
all child pornography offenders.12

Sentencing
Guidelines
The sentencing guidelines for child
pornography production offenses are found
in Chapter Two, Part G, Subpart 2 (Sexual
Exploitation of a Minor) of the Guidelines Manual.
Section 2G2.1 provides a base offense level
of 32 and contains six enhancements based
on aggravating circumstances related to: (1)
the age of the victim(s) involved;13 (2) whether
the offense involved the commission of a
sexual act or sexual contact;14 (3) whether the
defendant knowingly engaged in distribution
of child pornography;15 (4) whether the offense
involved material that portrayed sadistic or
masochistic conduct, depictions of violence, or
an infant or toddler;16 (5) whether the defendant
was a parent, relative, or legal guardian of the
minor involved in the offense, or the minor was
otherwise in the custody, care, or supervisory
control of the defendant;17 and (6) whether the
offense involved the knowing misrepresentation
of a participant’s identity or use of a computer
to persuade or entice a minor to participate in
sexually explicit conduct.18
Section 2G2.1 also provides that “[i]f the
offense involved the exploitation of more than
one minor,” the court should apply the guidelines’
multiple count rules in §§3D1.1 through 3D1.5
“as if the exploitation of each minor had been
contained in a separate count of conviction,”
even if the indictment only contained a single
production count.19 Thus, in a production case
involving multiple victims, an offender’s offense
level could be increased to account for harm
to additional victims, even if the offender is
convicted only of a single count of production.20

Chapter Two, Part G, Subpart 2
of the Guidelines Manual
(Sexual Exploitation of a Minor)

Specific Offense Characteristics

§2G2.1(b)(1)
Victim under age of 12 or under age of 16
2- or 4-level increase

§2G2.1(b)(2)
Commission of a sex act or sexual contact
2- or 4-level increase

§2G2.1(b)(3)
Distribution of child pornography
2-level increase

§2G2.1(b)(4)
Sadistic or masochistic conduct
or an infant or toddler
4-level increase

§2G2.1(b)(5)
Parent, Relative, Guardian, or Custody
of a Minor
2-level increase

§2G2.1(b)(6)
Misrepresentation or Use of a Computer
2-level increase

14

United States Sentencing Commission

While most child pornography production
offenders are referenced to §2G2.1 because of
their statute of conviction, some are sentenced
under §2G2.1 as a result of a cross reference
from another guideline. For example, under
§2G2.2, the non-production child pornography
guideline, a defendant who produced (or
attempted to produce) child pornography but
who was convicted solely of a non-production
offense (such as possession, receipt, or
distribution) should be sentenced under §2G2.1
rather than under §2G2.2 if the former guideline
yields a higher sentencing range than the
latter guideline.21 In some cases, the statutory
maximum punishment may be lower than the
otherwise applicable guideline range, and thus,
the statutory maximum becomes the guideline
sentence.22
In addition to the §2G2.1 enhancements
and recidivist statutory enhancements, the
guidelines also provide for enhanced penalties
for certain repeat sex offenders. The guideline
at §4B1.5 (Repeat and Dangerous Sex Offender
Against Minors) contains two enhancements
for defendants convicted of producing child

pornography who have at least one prior
conviction for a specified sex offense or who
“engaged in a pattern of activity involving
prohibited sexual conduct.”23 Section 4B1.5(a)
applies if an offender has one or more prior
convictions for a specified sex offense. If so,
the child pornography production offender’s
minimum offense level becomes 34 for one
conviction and 37 for two or more convictions.
The offender’s minimum Criminal History
Category is V.24 If §4B1.5(a) does not apply, but
the offender engaged in conduct constituting a
“pattern of activity,” §4B1.5(b) provides a 5-level
enhancement to the offense level determined at
§2G2.1.25
As noted above, the PROTECT Act
increased the statutory maximum term of
supervised release to lifetime supervision for all
child pornography offenders. The supervised
release guidelines recommend a lifetime term
of supervised release for all child pornography
offenders.26

Data
Overview

Chapter

2

Introduction

This chapter provides data analyses of offenders sentenced under the child
pornography production guideline at §2G2.1, focusing on offender and offense
characteristics.
The analyses in this section include data from fiscal years 2005 to 2019 for offenders
sentenced under a Guidelines Manual effective November 1, 2004 or later and for which the
Commission had complete guideline application information. The Commission used fiscal
year 2005 as the earliest point of analysis to evaluate a 15-year period after the PROTECT Act
and its impact on statutory penalties and the guidelines.

Figure 3.
Most Serious Offense of Conviction
for §2G2.1 Offenders
Fiscal Year 201927

Figure 4.
Mandatory Minimum Sentences
for §2G2.1 Offenders
Fiscal Year 2019
More than 15
Years
5.7%

Non-production Child
Pornography Offense
12.5%
Travel/
Enticement Offense
8.8%

No Mandatory Minimum
4.1%
5 Years
8.0%
10 Years
10.0%

Child Prostitution
Related Offense
1.2%
Production
Offense
77.2%

Fiscal Year 2019 Snapshot
Child pornography production offenders
represented a small percentage of the overall
federal caseload in fiscal year 2019. Of the
70,537 federal offenders sentenced in fiscal
year 2019 with complete case documentation
sent to the Commission, 0.7 percent (512
offenders) were sentenced under §2G2.1
as their primary guideline.28 Of the 512
offenders sentenced under §2G2.1 in fiscal
year 2019, 77.2 percent were convicted of a
child pornography production offense. The
remaining offenders were convicted of another
offense but were sentenced under §2G2.1
as the primary guideline via a cross reference

15 Years
72.3%

because the offense involved production conduct:
12.5 percent were convicted of a non-production
child pornography offense (possession, receipt, or
distribution); 8.8 percent were convicted of travel
or enticement of a minor offense; and 1.2 percent
were convicted of an offense related to child
prostitution (Figure 3).29
Of the 512 child pornography production
offenders sentenced in fiscal year 2019, 72.3
percent were convicted of an offense carrying
a 15-year mandatory minimum penalty (Figure
4). An additional 5.7 percent faced a mandatory
minimum penalty greater than 15 years because
they were convicted of a child pornography

Federal Sentencing of Child Pornography: Production Offenses

Figure 5. Trend in Number of Child Pornography Cases
Fiscal Years 2005 – 2019

-

Total
Production

1,852

Non-Production

1,340

I
- .,_-..----•----tet'""~

512

____...-----....-e

____.--·

....- -....--◄•------·----

· · - -...-_______.

2005

2006

2007

I

2008

2009

2010

2011

2012

production offense and had one or more
prior convictions for a qualifying sex offense.
Eighteen percent (18.0%) were convicted of
a crime that carries either a five or ten-year
mandatory minimum sentence. Notably,
the remaining 4.1 percent of offenders were
not convicted of an offense that carries a
mandatory minimum penalty (e.g., possession
of child pornography), but the court applied a
cross-reference to §2G2.1 because the offense
involved production of child pornography.
Trends from Fiscal Years 2005 – 2019
The number of federal child
pornography production offenses has increased
over time. In large part, this increase can be
attributed to technological advancements that
provide offenders easier access to victims as
well as the prevalence of smartphones with
built-in cameras and expansive storage.30

2013

2014

2015

2016

2017

2018

2019

As depicted in Figure 5, the number of child
pornography production offenders sentenced
under §2G2.1 has increased steadily from 98
offenders in fiscal year 2005 to its peak in fiscal
year 2019 with 512 offenders, which represents a
422 percent increase over 15 years. Conversely,
the number of non-production offenders
sentenced under §2G2.2 has steadily decreased
between 2012 and 2019.31 As a result of these
opposing trends, the overall number of child
pornography offenses (production and nonproduction offenses combined) has remained
relatively static since its high in 2012.

17

Offender Demographics
§2G2.1 Offenders Compared To All
Other Offenders

Offender and Offense Characteristics

Fiscal Year 2019

White

Most child pornography production
offenders were White (75.2%).
This contrasts with all other federal
offenders, who were 19.9 percent
White.

75.2%

U.S. Citizen

95.5%

Nearly all child pornography
production offenders were U.S.
citizens. Other federal offenders
were 56.3 percent U.S. citizens.

Male

94.3%

The overwhelming majority were
male (94.3%). This contrasts with all
other federal offenders, who were
87.8 percent male.

Average Age

38

The average age was 38 years old,
while the average age of all other
federal offenders was 37 years old.

College Educated

48.4%

Nearly half of child pornography
production offenders attended
college, compared with just over
one-fifth of all other offenders.

Criminal History Category
CHC I

More than 70 percent of child
pornography production offenders
70.3% were assigned to CHC I, the lowest
category.
44.2%
By contrast, fewer than half (44.2%)
of all other federal offenders were
assigned to CHC I.
16.6%

14.7%
8.6%

9.7%

8.6%
2.5%
II

III

IV

5.5% 5.8%
V

4.5%

9.1%

VI

Child pornography production offenders
sentenced under §2G2.1 differ from the
general federal offender population with
respect to demographic factors and criminal
history. Child pornography production
offenders tend to be racially homogenous, have
higher levels of education, and have limited
or no prior criminal histories. Most fiscal year
2019 child pornography production offenders
were White (75.2%) and nearly all were U.S.
citizens (95.5%) and male (94.3%). This
contrasts with all other federal offenders who
were 19.9 percent White, 56.3 percent U.S.
citizens, and 87.8 percent male.
The average age of child pornography
production offenders sentenced in fiscal year
2019 was 38 years old, only one year older
than the average age of all other federal
offenders sentenced in fiscal year 2019. Child
pornography production offenders generally
attained a higher degree of education than all
other offenders, with just under half (48.4%) of
production offenders having attended college
compared to approximately one-fifth (21.1%) of
all other offenders.
Finally, child pornography production
offenders have less extensive criminal histories
compared to other federal offenders. In fiscal
year 2019, 70.3 percent of child pornography
production offenders were assigned to Criminal
History Category I (the lowest category,
requiring no more than one criminal history
point). By contrast, 44.2 percent of all other
federal offenders were assigned to Criminal
History Category I. To add further context,
a majority (60.7%) of child pornography
production offenders had zero criminal history
points compared to one-third (33.4%) of all
other offenders sentenced in fiscal year 2019.

Chapter Four Enhancements for Repeat
and Dangerous Sex Offenders
Despite having less extensive criminal
records than other federal offenders, the
application of sentencing enhancements
under §4B1.5 (Repeat and Dangerous Sex
Offender Against Minors) for child pornography
production offenders has more than doubled
since fiscal year 2010. This increase is driven
almost entirely by the application of enhanced
sentences for an offender’s pattern of activity
under §4B1.5(b) (which does not require a
prior conviction to apply).32 More than half

(51.6%) of the child pornography production
offenders sentenced in fiscal year 2019
received enhanced sentences under §4B1.5(b)
for engaging in a pattern of activity involving
prohibited sexual conduct, compared to
less than one-quarter (22.9%) of child
pornography production offenders sentenced
in fiscal year 2010.33 In fiscal year 2019, 5.1
percent of child pornography production
offenders received enhanced sentences under
§4B1.5(a) for a prior sex offense conviction,
which is comparable to the 4.2 percent of
offenders who received this enhancement in
fiscal year 2010 (Figure 6).

Figure 6. Application of §4B1.5 for §2G2.1 Offenders
Fiscal Year 2019

§4B1.5(b)
51.6%

No
Enhancement
43.4%

• §4B1.5(a) - Prior sex offense conviction

§4B1.5(a)
5.1%

The application of the repeat and
dangerous sex offender enhancement
The application of repeat and dangerous sex
under
has more
offender
has§4B1.5
more than doubled
since FY than
2010. doubled
since fiscal year 2010.

• §4B1.5(b) – Pattern of Activity
•

12

Specific Offense Characteristics
Applied to §2G2.1 Offenders
Fiscal Year 2010 and Fiscal Year 2019

Fiscal Year
2019

ID/
Computer

19.5%
45.7%
62.0%
47.5%
23.4%

Distribution

27.4%

Sadistic or
Masochistic/
Infant/
Toddler

Specific Offense Characteristics Applied to
§2G2.1 Offenders
Reflecting the changing nature of
child pornography production offenses, the
frequency with which the §2G2.1 specific
offense characteristics apply today differs from
the application rates a decade earlier. Two of
the six enhancements under §2G2.1(b)—the
age of the minor victim and commission of a
sex act or sexual contact—continue to apply in
the majority of child pornography production
cases.34 However, because the crime now is
committed more often over the internet, fewer
offenders received an enhancement for being
a caregiver of the minor victim in the offense
in fiscal year 2019 (47.5%) compared to fiscal
year 2010 (62.0%). Far more offenders in
fiscal year 2019 received the enhancement for
misrepresentation of their identity or use of a
computer to persuade a minor victim compared
to offenders sentenced in fiscal year 2010
(45.7% and 19.5%, respectively). Additionally,
one-third (33.0%) of production offenders
sentenced in fiscal year 2019 received an
enhancement for knowingly distributing child
pornography, compared to roughly one-quarter
(24.5%) of production offenders sentenced in
fiscal year 2010.

Fiscal Year
2010

Care
or
Control

Sentencing
Characteristics

24.5%
33.0%

Sentence Length
Sex Act
or Sexual
Contact

68.8%
71.7%

92.5%
Age

90.8%

In fiscal year 2019, all child pornography
production offenders were sentenced to a term
of imprisonment. Sentences ranged from one
year to life, with an average sentence of 275
months.35 More than three-quarters (78.0%) of
fiscal year 2019 child pornography production
offenders were convicted under a statute that
carries at least a 15-year mandatory minimum
penalty.

21

Federal Sentencing of Child Pornography: Production Offenses

Figure 7. Average Guideline Minimum and Average Sentence for §2G2.1 Offenders
Fiscal Years 2005 – 2019
14

360
300

Average Guideline

Months

Average Sentence

------------=
~
~ .,, _...__..._~---.:--~::.
- -=---=
- - - ----- - ---------------- - ,.

- - - - - -----------

240

332
275

180
120
60
0

2005

2006

2007

2008

2009

2010

2011

Trends in Average Guideline Minimum and
Average Sentence Imposed from Fiscal
Years 2005 – 201936
Since the passage of the PROTECT Act,
the bottom of the average §2G2.1 guideline
range—that is, the average guideline minimum—
for child pornography production offenses
has increased. At the same time, the average
sentence imposed has remained relatively
stable, which has created an increasing divide
between the average guideline minimum and
average sentence imposed. Courts continue to
impose lengthy sentences, but also increasingly
apply downward variances in response to the
higher guideline ranges that apply to the typical
child pornography production offender.

2012

2013

2014

2015

2016

2017

2018

2019

The average guideline minimum for
child pornography production offenders has
increased steadily over time, from an average
of 273 months in fiscal year 2005 to an
average of 332 months in fiscal year 2019
(Figure 7). During that same time, the average
sentence has decreased slightly from an
average sentence of 281 months in fiscal year
2005 to an average sentence of 275 months
in fiscal year 2019. Although the difference
between the average guideline minimum and
average sentence imposed has widened over
time, the long-term trend shows that courts
consistently sentence child pornography
production offenders to lengthy sentences,
ranging from an average of 258 months to 288
months over the 15-year period.

22

United States Sentencing Commission

Sentences Imposed Relative to
the Guideline Range
Fiscal Year 2019 Snapshot
Despite the lengthy average sentence
(275 months), most child pornography
production offenders sentenced under §2G2.1
were sentenced below the guideline range in
fiscal year 2019. Less than one-third (30.7%)
of child pornography production offenders
sentenced under §2G2.1 received a sentence
within the guideline range in fiscal year 2019
(Figure 8).
The majority of child pornography
production offenders sentenced under §2G2.1
(57.2%) received a variance below the guideline
range under 18 U.S.C. § 3553(a).37 More than
one-third (36.1%) of offenders received a nongovernment sponsored variance below the
guideline range, compared to roughly one-fifth
(21.1%) that were government-sponsored.
Relatively few child pornography production
offenders (1.2%) received a variance above the
guideline range.

Of the 512 child pornography production
offenders sentenced in fiscal year 2019,
10.6 percent received a departure below the
guideline range that was either a governmentsponsored departure (5.9%),38 substantial
assistance departure (3.1%),39 or courtsponsored downward departure (1.6%). Few
offenders (0.4%) received a departure above the
applicable guideline range.
Trends from Fiscal Years 2005 – 2019
The percentage of child pornography
production offenders sentenced below the
guideline range has changed over time (Figure 9,
next page). The rate of within-range sentences
for offenders sentenced under §2G2.1 has
decreased steadily since fiscal year 2005, from
83.3 percent to 30.7 percent in fiscal year 2019.
This change is driven largely by an increase in
the rate of downward variances during that
time, from 16.7 percent in fiscal year 2005 to
a peak of 57.2 percent in fiscal year 2019. The
rate of substantial assistance departures, other
downward departures, and upward departures
or variances has remained relatively steady over
15
time.

Figure 8. Sentence Imposed Relative to the Guideline Range for §2G2.1 Offenders
Fiscal Year 2019
Above Range Variances
1.2%
Within Range
30.7%

Non-Government
Sponsored
Variances
36.1%
GovernmentSponsored
Variances
21.1%

Under the
Guidelines
Manual
41.6%

I
I

Government Departure
5.9%

Substantial Assistance
3.1%

Other Downward Departure
1.6%

I

Upward Departure
0.4%

I

23

Federal Sentencing of Child Pornography: Production Offenses

Figure 9. Sentence Imposed Relative to the Guideline Range for §2G2.1 Offenders
Fiscal Years 2005 – 2019
100.0%

16

75.0%
Downward Variance,
57.2%

50.0%

Within Range, 30.7%

25.0%
Downward Departure,
7.4%
§5K1.1

0.0%

Upward
Departure
or Variance

2005

2006

2007

2008

2009

2010

2011

2012

2013

2014

2015

2016

2017

2018

2019

Proximity,
Propensity,
and Participation

Chapter

3

Introduction
This chapter examines child pornography
production offender behavior and offense
characteristics. The Commission coded
information from the 512 child pornography
production cases sentenced in fiscal year
2019 to analyze victim characteristics
and three factors relevant to sentencing
child pornography production offenders:
(1) proximity, a measure of the offender’s
physical location and relationship with the

~

-

/---i
-

...... ...
/

victim; (2) participation, a measure of the
offender’s interaction with the victim(s); and
(3) propensity, a measure of the offender’s
tendency to engage in child pornography
conduct or exploitation outside of the
instant production offense. Using charging
documents, plea agreements, and presentence
reports, the Commission also coded
information about victim characteristics that
inform the discussion of these three factors.

\

;

, ...
... --

Proximity

DD

Following an overview of victim
characteristics, this section of
the report discusses five factors
related to the child pornography
production offender’s proximity to
the victim: the offender’s physical
location and personal relationship
with the victim, how the offender
communicated with the victim,
whether the offender traveled to
meet the victim, and the association
between physical proximity and age
of victims.

Participation

Propensity

The second section of this chapter
examines fiscal year 2019 child
pornography production offenders’
participation in the offense to gain
a broader understanding of how
offenders interacted with victims
during the production offense.

The third section analyzes the
child pornography production
offenders’ propensity to engage
in child pornography conduct or
sexual exploitation outside of the
production offense to provide
additional insight into the different
types of production offenders.

Federal Sentencing of Child Pornography: Production Offenses

Figure 10. Number of Victims in Child Pornography Production Offenses
Fiscal Year 2019
300

290

250

200

150

102

100

58
50

0

31

One

Two

Three

Number of Victims
The number of child pornography
production victims involved in a single
offense in fiscal year 2019 ranged from one
to 440.40 A majority (56.6%; n=290) of child
pornography production cases involved a

19

Four

12

More than four None or unknown

single victim. However, a substantial minority
(41.0%; n=210) had more than one minor victim
(Figure 10).

27

28

United States Sentencing Commission

Figure 11. Age of Youngest Victim in Child Pornography Production Offenses
Fiscal Year 2019
Infant
(<1 yr)

5.2%

Toddler
(1-3 yrs)

11.6%

Prepubescent
(4-12 yrs)

38.7%

44.5%

16.8%
0%

Teenager
(13-17 yrs)

61.3%
50%

100%

Age of Victims

Gender of Victims

In fiscal year 2019 child pornography
production cases, the average age of the
youngest minor victim was ten years old. In
over 60 percent (61.3%) of production cases,
the youngest victim was age 12 or younger,
with 16.8 percent of cases involving an infant
or toddler (Figure 11).41 In 38.7 percent of
the child pornography production cases, the
youngest victim was a teenager (13 to 17 years
old).

Female victims were more prevalent than
male victims in child pornography production
offenses (Figure 12). In fiscal year 2019, threequarters of the child porography production
cases involved only female victims (75.6%);
approximately 17 percent (17.3%) involved male
victims only; and the remaining 7.1 percent of
the offenses involved both male and female
victims.

Figure 12. Gender of Victims in Child Pornography Production Offenses
Fiscal Year 2019

Both
7.1%

Female
75.6%

Male
17.3%

Federal Sentencing of Child Pornography: Production Offenses

Proximity
Child pornography production offenders’
offense conduct and the degree of harm to the
victim varies based on the offender’s physical
proximity and personal relationship with
the victim. A majority of child pornography
production offenders maintained a position of
trust over their victims, whether through familial
relationships or by virtue of the offender’s role
as a teacher or a coach, for example. However,
given advancements in technology and social
media use by both offenders and minors, close
physical proximity is no longer necessary for
offenders to produce child pornography. An
increasing number of offenders exploited
victims remotely through the internet or the
use of mobile technology to produce child
pornography. Nevertheless, offenders who
appeared to have the closest proximity and
Figure 13. Offender’s Physical Location During
the Offense
Fiscal Year 2019

Offender in
Remote
Location
39.3%
Offender
Physically
Present
with Victim
60.7%

communicated with their victims in person
generally committed the production offense
with the youngest victims. And offenders in
close physical proximity to the victim(s) also had
sexual contact with the victim(s) in most cases.
This section of the report discusses
five factors related to the child pornography
production offender’s proximity to the victim:
(1) the offender’s physical location during the
offense; (2) the offender’s personal relationship
with the victim (e.g., parent, relative, family
friend, internet stranger); (3) the means by which
the offender communicated with the victim for
the purposes of producing child pornography;
(4) whether the offender traveled to meet a
victim; and (5) the association between physical
proximity and the age of the victims.
Physical Proximity
Approximately 60 percent (n=311) of the
512 offenders in fiscal year 2019 produced child
pornography in the same location as the victim,
and nearly 40 percent (n=201) of the offenders
committed the offense from a remote location.

29

30

United States Sentencing Commission

Table 1. Relationships of §2G2.1
Offenders to Victim
Fiscal Year 2019
Relationship to the Victim

All Cases
N

%

512

100.0%

307

60.3%

Parent

93

18.2%

Stepparent/Legal Guardian

33

6.4%

Other Relative

64

12.5%

Parent’s Intimate Partner

40

7.8%

Family Friend

87

17.0%

Teacher, Coach, etc.

37

7.2%

Internet Stranger

181

35.4%

Other Stranger

39

7.6%

Unknown

23

4.5%

Total §2G2.1 Offenders
Relative / Position of Trust

Relationship of the Offender to the Victim
As reflected in Table 1, a majority (60.3%)
of child pornography production offenders were
related to or otherwise maintained a position
of trust over a minor victim, as a family member
or other close relationship. Nevertheless,
due to technological advancements and the
changing nature of production offenses, the
largest individual category of child pornography
production offenders were internet strangers
who met their victims through an online or
remote platform (35.4%). Comparatively, only
14.3 percent of offenders in fiscal year 2010
were internet strangers who met their victims
online.42
An offender with multiple victims
may fall into more than one category (e.g., an
offender is the parent of one victim and the
teacher of another victim). Therefore, the
cumulative number in Table 1 exceeds the 512
offenders.
Biological parents (18.2%) and
stepparents or legal guardians (6.4%) of a
minor victim make up roughly a quarter of child
pornography production offenders sentenced in
fiscal year 2019. Approximately 20 percent of
child pornography production offenders were

Figure 14. Offender Lived with Victim
Fiscal Year 2019
PartTime
5.9%

Full-Time
32.2%

No
61.9%

either non-parental relatives (12.5%) or a minor
victim’s parent’s intimate partner (7.8%). Just
under one-quarter of the offenders were either
a family friend of a victim (17.0%) or maintained
another position of trust, for example, as a
teacher or coach (7.2%).
Although a majority of child pornography
production offenders maintained some position
of trust over their victim(s), most (61.9%) did
not live in the same household with their minor
victim(s) (Figure 14). Nearly one-third (32.2%)
of child pornography production offenders lived
in the same household with a victim full-time,
while 5.9 percent of offenders lived with a
victim at least part-time.
Methods of Communication with the
Victim to Facilitate Offense
Child pornography production offenders
communicated with victims through various
methods to induce them to participate in
the offense. Furthermore, some offenders
who had more than one victim used multiple
methods (e.g., an offender communicated with
one victim in person and contacted another
victim remotely, or an offender communicated
with one victim in person and surreptitiously
recorded a separate victim) (see Figure 15,
next page). Approximately half of fiscal year
2019 child pornography production offenders

31

Federal Sentencing of Child Pornography: Production Offenses

Figure 15. Methods of Communication with Minor Victims
Fiscal Year 2019

Total In Person
50.4%

Total Remote
44.0%

In Person

37.1%

Total Surreptitious

19.3%

Table 2. Methods §2G2.1 Offenders Used to
communicated with a victim in person (50.4%)
Communicate with Victims
and slightly less than half (44.0%) of the
offenders communicated with a victim remotely Fiscal Year 2019
(e.g., via computer or interactive mobile device)
to effectuate the offense. Notably, 19.3 percent
Methods of Communication
of offenders surreptitiously recorded a victim
N
%
to produce child pornography, and thus did not
communicate with that victim either in person or
Total §2G2.1 Offenders
512
100%
remotely.
The type of remote methods child
pornography production offenders used to
communicate with victims also varied (Table
2). Slightly more than one quarter (26.6%) of
child pornography production offenders used
interpersonal communication methods, such as
text, email, or instant messaging, to persuade a
victim to participate in the child pornography
production offense. Approximately one-third
(32.8%) of offenders used one or more online
or virtual means of communication to contact a
victim, including social media platforms (24.8%),
live streaming (10.0%), online video games
(2.3%), and other websites (2.0%).

In Person

258

50.4%

Phone Call

13

2.5%

Text/Email/IM

136

26.6%

Social Media Platform

127

24.8%

Video Game

12

2.3%

Website

10

2.0%

Live Streaming

51

10.0%

99

19.3%

No Contact/Surreptitious Production

32

United States Sentencing Commission

Figure 16. Travel with Intent to Engage in Sexual
Contact with a Victim
Fiscal Year 2019

Yes
11.9%

Attempted
0.2%

No
87.9%

Travel to Meet a Victim
Of the 512 child pornography production
offenders, 11.9 percent (n=61) traveled to
meet a victim of the offense, most commonly
after contacting the victim remotely (e.g., after
chatting on the internet) (Figure 16). In a few
instances, the offender initially contacted the

victim in person, for example, at a family
function, and then traveled to meet the victim
of the offense at a later date. Most of the 61
offenders (80.3%; n=49) who traveled to meet a
victim had sexual contact with the minor.

33

Federal Sentencing of Child Pornography: Production Offenses

Figure 17. Age of Victim by Method of §2G2.1 Offender Contact (Remote or In Person)
Fiscal Year 2019
■

Infant (<1 yr)

■

Toddler (1-3 yrs)

■

Pre-Pubescent (4-12 yrs)

■

Teenager (13-17 yrs)

30.3%
8.5%

In Person

21.8%

61.7%

36.5%

Remote

0%

0.6%

16.5%

53.2%

1.2%

Proximity of Offender and Age of the
Victims
Child pornography production offenders
who had closer proximity to their victims—
those who communicated with them in
person—victimized younger children compared
to production offenders who communicated
remotely (Figure 17). Among offenders who
initiated communication with their victims in
person, the youngest victims for nearly onethird (30.3%) of offenders were infants or
toddlers, and slightly more than half (53.2%)
were prepubescent (age 4 to 12).43 Teenagers

50%

100%

were the youngest victims in 16.5 percent
of the cases in which offenders initially
communicated with victims in person.
Conversely, the youngest victims for
nearly two-thirds (61.7%) of offenders who
communicated with victims remotely were
teenagers, who were more likely to have access
to the internet, cell phones, or social media.
The youngest victims for more than one-third
of offenders who communicated with victims
remotely were prepubescent (36.5%).44

34

United States Sentencing Commission

Participation
This section of the report examines
fiscal year 2019 child pornography production
offender participation in the offense to gain
a broader understanding of how offenders
interacted with victims during the production
offense. The Commission analyzed four
measures of participation: (1) the method of
production used by the offender; (2) whether
the offender committed the offense with a coparticipant; (3) any sexual contact with the victim
during production; and (4) any incapacitation,
coercion, enticement, or misrepresentation used
against the victim.
Child pornography production offenders
exploit technology to gain access to potential
victims to produce child pornography. Today,
offenders predominantly use easily accessible
technologies such as cell phones and web
cameras to produce child pornography. Some
victims self-produce images or videos. In
such instances, some offenders use coercive
tactics to effectuate the offense by harassing

or threatening victims. Other offenders
misrepresent their identity or engage in online
dialogue to entice victims.
Method of Production
Nearly half (47.1%) of all production
offenders sentenced in fiscal year 2019 used
a smartphone or tablet to create a child
pornography image or video, highlighting the
ease with which offenders can create new
content using readily available technology
(Table 3). A substantial minority of offenders
(36.5%) had victims create content at their
request. In 11.9 percent of the cases in
fiscal year 2019, the offenders used a livestreaming platform or web camera to produce
child pornography. Because some offenders
produced child pornography in more than one
way, the percentages in Table 3 exceed 100.

Table 3. Method of Production Used by §2G2.1 Offenders
Fiscal Year 2019
Method of Production
N

%

Total §2G2.1 Offenders

512

100.0%

Smartphone or Tablet

241

47.1%

Victim Produced

187

36.5%

Other Camera

66

12.9%

Live Stream or Webcam

61

11.9%

Other

11

2.2%

Unknown Method or Attempted Production

55

10.7%

35

Federal Sentencing of Child Pornography: Production Offenses

Figure 18. Co-Participants for §2G2.1 Offenders
Fiscal Year 2019

In the same location
7.4%

No Co-participant
83.8%

Co-participant
16.2%

Remotely
8.6%

Both in the same location and remotely
0.2%

Offender and Co-Participant Conduct
In fiscal year 2019, most child
pornography production offenders (83.8%)
committed the offense alone, but 16.2 percent
of offenders committed the offense with an
adult co-participant (Figure 18). Nearly as many Table 4. Sexual Contact During Production Offense
Fiscal Year 2019
offenders committed the offense with an adult
co-participant in the same location (7.4%) as
remotely (8.6%). Although there were relatively
%
Sexual Contact During Production
N
few female child pornography production
offenders (5.7%; n=29), female production
offenders were far more likely to commit the
Total §2G2.1 Offenders
512
100.0%
offense with a co-participant compared to
male production offenders (75.9% of female
offenders compared to only 12.6% of male
Offenses Involving Sexual Contact
414
80.9%
offenders).
Sexual Contact During the Offense
The Commission found that the majority
of child pornography production cases (80.9%)
in fiscal year 2019 involved sexual contact.
Most commonly, child pornography production
offenses in fiscal year 2019 involved the
offender sexually contacting a victim (51.2%;
n=262) (Table 4). In an additional 4.5 percent
of the cases, an adult co-participant sexually
contacted the victim. A quarter of child
pornography production offenses (25.2%;
n=129) involved the victim(s) engaging in sexual
contact alone or with another victim.

Offender sexually contacted a victim

262

51.2%

Co-participant sexually contacted a victim

23

4.5%

Victim(s) engaged in sexual contact

129

25.2%

98

19.1%

No sexual contact of a victim

36

United States Sentencing Commission
N = 512

Figure 19. Sexual Contact and Offender Present
§2G2.1 Offenders - Fiscal Year 2019
0%

10%

20%

30%

40%

50%

60%

70%

80%

90%

100%

84.2% (n=262)
Offender was present
(n=311)

2.3% (n=7)
2.6% (n=0)
10.9% (n=34)

Offender was not present
(n=201)

8.0% (n=16)
60.2% (n=121)
31.8% (n=64)

■

Offender sexually contacted victim

■

Co-participant sexually contacted victim

■

Victim sexually contacted himself/herself or another victim

■

No sexual contact

Proximity and Sexual Contact

Offender in Remote Location

This section of the report examines
the rate and type of sexual contact when an
offender committed the offense in the same
location as the victim and when the offender
committed the offense remotely. As discussed
previously, in fiscal year 2019, of the 512
offenders, approximately 60 percent (n=311)
produced child pornography in the same
location as the victim, and nearly 40 percent
(n=201) of the offenders committed the offense
from a remote location.45

When the offender committed the
production offense from a remote location (e.g.,
via the internet or video chat), most cases also
involved physical sexual contact, albeit less
frequently than when the offender was present
(68.2% of 201 cases) (Figure 19). Furthermore,
the nature of the sexual contact differed. In
60.2 percent of the 201 cases where the
offender committed the offense remotely, the
victim engaged in sexual contact alone or with
another victim. In 8.0 percent of the cases
when the offender committed the offense from
a remote location, a co-participant sexually
contacted the victim. Finally, in nearly one-third
of the 201 cases when the offender was not
present, there was no sexual contact (31.8%).

Offender Present in the Same Location
When the offender committed the
offense in the same location as the victim,
the offense involved sexual contact in the
vast majority of cases (89.1% of the 311
cases). Most commonly, the offender sexually
contacted the victim (84.2%). Less frequently,
when the offender was in the same location as
the victim, a co-participant sexually contacted
the victim (2.3%), or a victim engaged in sexual
contact alone or with another victim (2.6%).
Finally, there was no sexual contact in 10.9
percent of cases when the offender committed
the offense in the same location as the victim.

Federal Sentencing of Child Pornography: Production Offenses

Figure 20. Incapacitation, Coercion, Enticement, or
Misreprentation by §2G2.1 Offenders
Fiscal Year 2019

Incapacitation,
Coercion,
Enticement, or
Misrepresentation
40.0%
No Incapacitation,
Coercion, Enticement,
or Misrepresentation
60.0%

Incapacitation, Coercion,
Misrepresentation, and Enticement
The Commission identified aggravating
means offenders used to manipulate a victim
to participate in the production of child
pornography. Forty percent of the 512 child
pornography production offenders sentenced
in fiscal year 2019 incapacitated, coerced, or
enticed a minor victim, or misrepresented their
identity to facilitate the child pornography
production offense. This section of the report
analyzes the various aggravating means
offenders used to induce victims to participate
in producing child pornography.

Incapacitation
Among child pornography production
offenders sentenced in fiscal year 2019, roughly
five percent (4.5%) used drugs or alcohol to
render the minor victim unconscious, docile, or
cooperative prior to the production conduct
(Figure 21).

Figure 21. Incapacitation of a Minor Victim by §2G2.1 Offenders
Fiscal Year 2019
Drugged or
Incapacitated
Victim
4.5%

Did Not Drug
or
Incapacitate
Victim
95.5%

37

38

United States Sentencing Commission

Figure 22. Coercion Used by §2G2.1 Offenders
Fiscal Year 2019

Did Not Use
Violence,
Threats, or
Coercion
79.9%

Used
Violence,
Threats, or
Coercion
20.1%

Violence Used
Violence Threatened
Sextortion
Bullying
Other Pressure

Coercion
The Commission also examined whether
the offender used any coercion—violence,
threats, bullying, or other pressure—to induce
the minor victim to participate in the child
pornography offense. In fiscal year 2019,
one-in-five (20.1%; n=103) child pornography
production offenders coerced a minor victim
in some fashion to participate in the offense
(Figure 22). Of the offenders who engaged in
coercive behaviors, roughly two-thirds used
only one coercive approach (64.1%; n=66);
more than one-third (35.9%; n=37) used more
than one of these coercive tactics against a
minor victim.
The most commonly used type of
coercion is known as “sextortion.” It involves
coercing a minor by using, or threatening to use,
images or videos previously obtained to demand
that the minor engage in a sexual act with the
offender or to demand additional images or

I3.5%
I 6.8%
I 8.4%
I1.6%

I 7.8%

videos that are sexual in nature. Sextortion
can take many forms, including making threats
to harm family or friends unless the victim
complies with demands, hacking to gain access
or control of the computer’s webcam to obtain
images and videos, or leading the victim to
believe the perpetrator can be trusted.46 In
fiscal year 2019, roughly eight percent (8.4%) of
offenders engaged in sextortion by threatening
to share or actually sharing images of the minor
child with their peers, family members, friends,
and even their teachers.
Approximately ten percent of child
pornography production offenders either
used violence (3.5%) or threatened violence
(6.8%) against a minor. Fewer offenders (1.6%)
engaged in another form of bullying to coerce a
minor victim.47 Additionally, 7.8 percent of the
offenders used other forms of pressure against
a minor victim, such as threatening to take
away television privileges, to secure the child’s
cooperation with the offender’s demands.

Federal Sentencing of Child Pornography: Production Offenses

Figure 23. Offender Misrepresentation of Identity
Fiscal Year 2019

Misrepresentation
19.3%
No Misrepresentation
80.7%

Misrepresented age as
under 18

I

Misrepresented gender

I

Misrepresented both
age and gender

I
I

Otherwise
misrepresented identity

7.2%

2.2%
4.9%
5.1%

Misrepresentation

Enticement

The increased use of the internet and
remote technologies allows offenders to
contact their victims on platforms where they
can easily disguise their real identities. In fiscal
year 2019, approximately one-fifth (19.3%)
of child pornography production offenders
misrepresented their identity in some manner to
lure victims into participating in the production
offense (Figure 23). Offenders misrepresented
their age (7.2%), gender (2.2%), both their age
and gender (4.9%), or another aspect of their
identity (5.1%). Among production offenders
who otherwise misrepresented their identity,
they represented themselves as talent scouts,
photographers, modeling agents, or employers.
Most child pornography production offenders
who misrepresented their identity initially met
their victim remotely (e.g., via the internet).

Child pornography production offenders
used various forms of enticement to induce
victims to participate in the offense. Of the
512 child pornography production offenders
sentenced in fiscal year 2019, 15.4 percent
offered minor victims enticements in the form
of drugs, alcohol, gifts, or other incentives
to encourage them to participate in the
production of child pornography (Figure 24).
Gifts or incentives (11.9%) were the most
common enticements and included items
such as smartphones, phone cards, and inapp purchases in an online game—items
which helped facilitate both the offender’s
communication with the minor victim and
the production of child pornography. Fewer
offenders used drugs or alcohol (2.5%) or
both gifts and drugs and alcohol (1.0%) as an
enticement.

Figure 24. Enticement Used by §2G2.1 Offenders
Fiscal Year 2019
Drugs or Alcohol

Did Not Use
Enticements
84.6%

Used
Enticements
15.4%

Gifts or Incentives
Both Drugs/Alcohol
and Gifts or Incentives

I

2.5%

I

11.9%

1.0%

I

39

40

United States Sentencing Commission

Propensity
The Commission analyzed the child
pornography production offenders’ propensity
to engage in child pornography conduct or
sexual exploitation outside of the production
offense to provide additional insight into the
different types of production offenders.48 In
this section of the report, the Commission
examines four measures of an offender’s
propensity: (1) whether an offender shared
self-produced child pornography, or possessed
or distributed additional child pornography
that the offender did not produce; (2) whether
an offender was a member of an online
community devoted to child pornography or
sexual exploitation; (3) whether an offender had
any previous contact sex offenses (any illegal
sexually abusive conduct involving actual or
attempted sexual contact with a victim); and
(4) whether an offender had a history of noncontact sex offenses (such as soliciting a minor
online).

Propensity to Engage in Child
Pornography or Exploitive Conduct
Most child pornography production
offenders not only produced child
pornography, but also engaged in additional
child pornography conduct or sexual
exploitation. Two-thirds (68.4%) of production
offenders sentenced in fiscal year 2019 either
distributed the pornography they produced,
possessed or distributed child pornography
that they did not produce, or otherwise
participated in an online community devoted
to child pornography or sexual exploitation.
Some offenders engaged in more than one
additional child pornography behavior (e.g.,
an offender distributed child pornography
and separately participated in a community
devoted to sexual exploitation), therefore,
the sub-categories of offenders in Figure 25
discussed below exceed 68.4 percent.

Figure 25. Engagement in Additional Child Pornography Conduct or Sexual
Exploitation by §2G2.1 Offenders
Fiscal Year 2019
Distributed Produced
Images
No Engagement
31.6%
Engagement
68.4%

Distributed NonProduced Images
Possessed NonProduced Images
Participated in Online
Child Pornography
Community

31.6%

■

22.9%

-•

54.7%

36.3%

Federal Sentencing of Child Pornography: Production Offenses

Slightly more than 30 percent (31.6%) of
offenders distributed the videos or images they
produced, most commonly using direct personal
communication methods, such as instant
messaging or texting. Additionally, more than
half (54.7%) of production offenders possessed
child pornography that they did not produce,
and almost one-quarter (22.9%) distributed child
pornography that they did not produce. More
than one-third (36.3%) of child pornography
production offenders were members of online
child pornography communities specifically
dedicated to discussing child exploitative
content or abuse.
Propensity to Engage in Child Sexual
Abuse
The Commission also examined whether
the offenders committed contact or non-contact
sex offenses in addition to the production
offense as a measure of the child pornography
offenders’ propensity to sexually abuse victims.
The Commission analyzed presentence reports
and plea agreements to determine whether
the instant offense involved sexually abusive
conduct (in addition to the production offense),
whether pretrial release was revoked for a
sex offense or subsequent child pornography

offense, and whether there was a criminal
history of arrests or convictions for prior
sexually abusive conduct or allegations of
such conduct. Additionally, the Commission
reviewed the Personal History section of the
presentence reports, which often described
other allegations or admissions by the offender
of engaging in aggravating sexual conduct.
First, the Commission analyzed the rate
at which offenders committed a contact sex
offense. In nearly 40 percent (37.5%) of child
pornography production cases sentenced in
fiscal year 2019, the offender had engaged in
a contact sex offense against a minor (Table
5). More than one-in-ten (10.9%) had a prior
conviction for a contact sex offense against a
child. Similar proportions of fiscal year 2019
child pornography production offenders were
arrested for (11.5%), admitted to (10.0%),
or were alleged (11.7%) to have committed
a contact sex offense against a minor.49
Relatively few child pornography production
offenders (1.0%) had a prior conviction for a
contact sex offense against an adult.

Table 5. Sexual Conduct by §2G2.1 Offenders
Fiscal Year 2019
Sexual Conduct

N = 512

% of 512

192

37.5%

Conviction

56

10.9%

Arrest

59

11.5%

Admission

51

10.0%

Allegation

60

11.7%

Revocation

1

0.2%

Non-Contact Sex Offense
Conviction

22

4.3%

Prior Non-Production Child
Pornography Conviction

25

4.9%

Conviction for Contact Sex
Offense Against an Adult

5

1.0%

Contact Sex Offenses Against a
Minor

41

42

United States Sentencing Commission

Table 6. Non-Contact Sexual Conduct by §2G2.1 Offenders
Sexual Conduct

N = 512

% of 512

Non-Contact Sex Offenses Against a Minor

235

45.9%

Solicitation of a Minor for Images

88

17.2%

Solicitation of a Minor for Sex

72

14.1%

Sent Pornography to Minors

164

32.0%

Other Non-Contact Sex Offenses

53

10.4%

Next, the Commission analyzed
whether the child pornography production
offenders had prior convictions for noncontact sex offenses. Of the 512 child
pornography production offenders sentenced
in fiscal year 2019, nearly five percent (4.9%)
had a prior conviction for a non-production
child pornography offense (possession, receipt,
or distribution). Roughly four percent (4.3%) of
child pornography production offenders had a
prior conviction for a non-contact sex offense,
such as indecent exposure (Table 5, previous
page).
Finally, the Commission analyzed the
sentencing documents to identify whether
the child pornography production offenders
engaged in other sexually abusive or

exploitative conduct, irrespective of an arrest
or prosecution. Nearly half (45.9%) of all child
pornography production offenders sentenced
in fiscal year 2019 engaged in sexually abusive
or exploitative conduct in addition to the
production offense (Table 6). Approximately
one-third (32.0%) of child pornography
production offenders sent pornography
to a minor, 17.2 percent solicited a minor
for pornographic images (unrelated to the
production offense), and 14.1 percent solicited
a minor for sexual contact.50 Approximately
ten percent (10.4%) of child pornography
production offenders sentenced in fiscal year
2019 also committed some other non-contact
sex offense, such as indecent exposure.

Sentencing
Outcomes

Chapter

4

44

United States Sentencing Commission

Sentencing Outcomes
Child pornography production offenders
received lengthy sentences in fiscal year 2019,
275 months on average. The Commission
found that proximity, participation, and
propensity of child pornography production
offenders appear to be key factors that impact
sentencing outcomes.

Proximity and Sentencing
Outcomes

The potential for physical harm
to a child is greater when the offender is
present in the same location as the victim.
Accordingly, in fiscal year 2019, courts
sentenced offenders who were present
with the minor victim during production
to longer sentences than offenders who
committed the offense remotely. Child
pornography production offenders in
the same location as the victim were
sentenced to an average of 302 months,
compared to an average of 234 months
for remote offenders, a difference of more
than five years.

Longer sentences were imposed for offenses
involving younger victims, a familial or close
relationship between the offender and victim,
any sexual contact of a minor prior to or during
the instant offense, and the incapacitation or
coercion of a minor victim by the offender.

Table 7. Offender Location and Sentence Length
Fiscal Year 2019
Offender Presence
Total §2G2.1 Offenders
Offender Was Present
Offender Was Not Present

-

N

Mean Sentence

512

275

311

302

201

234

Federal Sentencing of Child Pornography: Production Offenses

Offender and Victim Relationship and
Sentence Length
The proximity, or closeness of the
relationship between an offender and the
victim, also appears to affect sentencing
outcomes. Child pornography production
offenders who had closer relationships to their
victim(s) received longer average sentences
compared to those offenders with more distant
relationships (Table 8). Section 2G2.1 provides
a 2-level enhancement for offenders who were
parents, relatives, legal guardians, or otherwise
maintained custody or care of their victim(s).51

When analyzing the relationship between the
offender and victim, the Commission found
that courts imposed the longest sentences,
on average, for child pornography production
offenders who were parents of the victim(s)
(340 months) followed by offenders who
were some other relative of the victim(s)
(304 months). Similarly, child pornography
production offenders who maintained a position
of trust over the minor victims, such as a coach
or teacher, received longer average sentences
(274 months) than offenders who met their
victim(s) online (249 months).

Table 8. Select Offender and Victim Relationships and Sentence Length
Fiscal Year 2019
Relationship to Victim

N

Mean Sentence

Total §2G2.1 Offenders

512

275

Parent

93

340

Other Relative

60

304

Teacher, Coach, etc.

37

274

Internet Stranger

181

249

45

46

United States Sentencing Commission

Age of Victim and Sentence Length
The proximity of an offender to
their victim(s) is also closely associated
with having younger victims involved in the
production offense.52 Section 2G2.1 provides
enhancements of 2- or 4-levels based on the
age of the victim. Accordingly, offenses that
involved the youngest victims received longer
sentences compared to those offenses involving
older minor victims.

When analyzing the age of the victims,
offenders whose youngest production victim
was an infant had the highest average sentence
among fiscal year 2019 production offenders
(364 months) (Table 9). On average, offenders
who victimized an infant received sentences
that were more than a decade longer than
production offenders whose youngest victim
was a teenager (364 months and 232 months,
respectively). Additionally, offenders whose
youngest victim was a toddler or prepubescent
also received longer average sentences (330
months and 292 months, respectively) than
offenders whose youngest victim was a
teenager (232 months).

Table 9. Age of the Youngest Production Victim and Sentence Length
Fiscal Year 2019
Age of Youngest Victim

N

Mean Sentence

Total §2G2.1 Offenders

512

275

Infant

26

364

Toddler

58

330

Prepubescent

223

292

Teenager

194

232

Federal Sentencing of Child Pornography: Production Offenses

Participation and Sentencing
Outcomes
Courts appear to consider an offender’s
level of participation with a minor victim during
the offense when imposing sentences. Among
fiscal year 2019 child pornography production
offenders, courts imposed longer sentences
on offenders who had a higher degree of
participation with a minor victim, either through
sexual contact or the use of coercive tactics to
manipulate the victim.

Sexual Contact During Production
Section 2G2.1 provides an enhancement
of 2- or 4-levels if the production offense
involved sexual contact or the commission of
a sex act.53 Consistent with the enhancement,
courts imposed longer average sentences when
an offender or adult co-participant physically
sexually contacted a minor victim (307 months)
compared to offenses that did not involve
sexual contact (221 months) (Table 10). Courts
also appear to consider sexual conduct between
or among minor victims that does not include
the offender or a co-participant when imposing
sentences. Offenders who committed child
pornography production offenses that involved
the victim(s) engaging in sexual contact alone
or with another victim were sentenced to 244
months on average, almost two years longer
than the average sentences for offenses that did
not include sexual contact during production
(221 months).

Table 10. Sexual Contact During Production and Sentence Length
Fiscal Year 2019
Level of Contact

N

Mean Sentence

Total §2G2.1 Offenders

512

275

Offender or co-participant sexually contacted a victim

285

307

Victim(s) engaged in sexual contact

129

244

No sexual contact

98

221

47

48

United States Sentencing Commission

Incapacitation, Coercion, Enticement, or
Misrepresentation
Section 2G2.1 provides a 2-level
enhancement if an offender misrepresents their
identity to commit the offense.54 Offenders
who misrepresented themselves to a minor
victim received longer average sentences (288
months) compared to offenders who did not
use any aggravating form of manipulation or
coercion (266 months) (Table 11).
The Commission also examined how
courts sentenced offenders who engaged
in coercive or manipulative conduct not
specifically accounted for in §2G2.1 to secure
a minor victim’s participation to produce child
pornography. Child pornography production
offenders who incapacitated or coerced victims
received longer average sentences, compared to
offenders who used other means of enticement
or did not engage in those behaviors (Table
11). Child pornography production offenders

who incapacitated a minor victim using drugs
or alcohol received an average sentence of 313
months. Offenders who used coercive tactics
such as violence, sextortion, threats, or bullying
were sentenced to an average of 291 months,
which is more than two years longer than the
average sentence for offenders who did not
engage in these behaviors (266 months).
Courts also appear to consider whether
offenders used other enticements, such as gifts,
when imposing sentences on child pornography
production offenders. Offenders who provided
these enticements were sentenced to an
average of 277 months, which is 11 months
longer than offenders who did not use any
misrepresentation or coercion to commit the
child pornography production offense.

Table 11. Incapacitation, Coercion, Misrepresentation, or Enticement and Sentence Length
Fiscal Year 2019
Type of Inducement

N

Mean Sentence

Total §2G2.1 Offenders

512

275

Incapacitation

23

313

Coercion

103

291

Misrepresentation

99

288

Enticement

79

277

None

307

266

Federal Sentencing of Child Pornography: Production Offenses

Propensity and Sentence
Length
Courts imposed longer sentences on
production offenders who engaged in child
pornography conduct outside of the instant
offense or had any other physical sexual contact
with a minor victim. Courts also imposed longer
sentences on offenders who had a history
of sexual misconduct, including those with a
history of non-contact sex offenses and contact
sex offenses against adults.

Child Pornography Conduct Outside of
the Production Offense
In fiscal year 2019, production offenders
who engaged in child pornography conduct
outside of their production offense received
longer average sentences than those offenders
who did not (Table 12). Offenders who shared
images they produced, possessed or shared
images produced by others, or participated in an
online community devoted to child pornography
or exploitation were sentenced to 289 months,
on average, which was nearly four years longer
than the 245-month average sentence for those
offenders who did not engage in additional child
pornography conduct.

Table 12. Propensity to Engage in Child Pornography Conduct or
Sexual Exploitation and Sentence Length
Fiscal Year 2019
Level of Contact

N

Mean Sentence

Total §2G2.1 Offenders

512

275

Offender Engaged in Non-Production Child Pornography Conduct or
Sexual Exploitation

350

289

Offender Did Not Engage in Other Child Pornography Conduct or Sexual
Exploitation

162

245

49

50

United States Sentencing Commission

Propensity to Engage in Sexual Abuse
Outside of the Production Offense
As discussed previously, §4B1.5 (Repeat
and Dangerous Sex Offender Against Minors)
contains two enhancements for offenders who
commit sex crimes. The first provision under
§4B1.5(a) applies if the offender committed the
instant offense of conviction after sustaining at
least one qualifying sex offense conviction.55
In fiscal year 2019, 26 child pornography
production offenders received the sentencing
enhancement under §4B1.5(a) and their average
sentence was 387 months, more than 15 years

longer than production offenders who did
not receive the enhancement (204 months)
(Table 13). Section 4B1.5(b) provides a 5-level
enhancement for behavior that constitutes a
pattern of activity involving prohibited sexual
conduct.56 More than half of the production
offenders (51.6%) received the pattern of
activity enhancement under §4B1.5(b). The
production offenders who received the pattern
of activity enhancement were sentenced to an
average of 324 months, ten years longer than
the average sentence for offenders who did not
receive an enhancement under §4B1.5 (204
months).

Table 13. Repeat and Dangerous Sex Offender Enhancement and Sentence Length
Fiscal Year 2019
Chapter Four Enhancement

N

Mean Sentence

§4B1.5(a)

26

387

§4B1.5(b)

264

324

No Enhancement

222

204

Federal Sentencing of Child Pornography: Production Offenses

Irrespective of a §4B1.5 enhancement,
courts appear to account for the presence
of a prior sex offense when sentencing child
pornography production offenders. Among
child pornography production offenders
sentenced in fiscal year 2019, those with a prior
contact sex offense against a minor or an adult
received markedly longer average sentences

(334 months and 330 months, respectively)
than those offenders with no history of such
conduct (267 months) (Table 14). Offenders
with prior convictions for non-production child
pornography offenses received comparable
sentences (331 months) to those offenders who
committed a prior contact sex offense.

Table 14. Prior Sex Offense Conviction and Sentence Length
Fiscal Year 2019
Type of Prior Sexual Offense Conviction

N

Mean Sentence

Total §2G2.1 Offenders

512

275

Contact Sex Offense Against a Minor

56

334

Non-Production Child Pornography Offense

25

331

Contact Sex Offense Against an Adult

5

330

Non-Contact Sex Offense

22

255

No Prior Sex Offense Conviction

424

267

51

Conclusion

54

United States Sentencing Commission

Conclusion
Child pornography production offenses
are serious crimes that memorialize the sexual
abuse and exploitation of children. Offenders
who produce child pornography use a wide
variety of technology and coercive tactics
to manipulate children for the purpose of
committing these serious offenses. The typical
child pornography production offense takes one
of two forms. Most commonly, the offender
maintains a position of trust over the victim
and has physical access to the child during
the production of child pornography, which
frequently culminates in the offender having
sexual contact with the victim during the
offense. Alternatively, a growing proportion
of offenders are strangers who initially contact
victims remotely through the internet or
other mobile technology to produce child
pornography. This report provides insight
into how offenders commit child pornography
production offenses and highlights the dangers
that children face, whether offenders rely
upon their proximity, coercive tactics, or online
platforms to communicate with victims.

Although most child pornography
production offenders receive sentences below
their applicable guideline ranges, the serious
nature of these offenses generally leads to
lengthy sentences. The average production
offender was sentenced to 275 months in
fiscal year 2019. However, sentence lengths
vary, at least in part, based on the presence of
aggravating factors related to the offenders’
proximity to the victim, participation in the
offense, and propensity to engage in exploitive
behavior. Longer sentences, on average in
excess of 300 months, were imposed for
offenses involving infants or toddlers, a familial
or close relationship between the offender
and victim, any sexual contact of a minor
prior to or during the instant offense, and any
incapacitation of a minor victim to effectuate
the offense.

For More
Information
Visit the Commission’s website for
additional resources on the child
pornography guidelines.
www.ussc.gov

Federal Sentencing of Child Pornography: Production Offenses

Related Reports

History of
the Child
Pornography
Guidelines

Report to the
Congress:
Federal Child
Pornography
Offenses

Mandatory
Minimum
Penalties for
Federal Sex
Offenses

Federal
Sentencing
of Child
Pornography:
Non-Production
Offenses

2009

2012

2019

2021

55

56

United States Sentencing Commission

Federal Sentencing of Child Pornography: Production Offenses

Appendix

57

58

United States Sentencing Commission

Appendix A
Appendix A provides the geographic
distribution of child pornography production
cases. Tables A-1 and A-2 show the district
courts with the highest number of production
cases, by highest raw number of cases and
by highest percentage of the total caseload,
respectively. Figure A-1 is a map showing the
child pornography production caseload by
district in fiscal year 2019.

The five districts where child
pornography production cases made up the
highest percentage of their overall federal
caseload were the District of Minnesota (5.1%),
the Southern District of Indiana (3.6%), the
Central District of Illinois (3.6%), the Middle
District of Pennsylvania (3.4%), and the
Southern District of Illinois (3.2%).

Of the 512 cases in fiscal year 2019, the
five districts with the highest number of child
pornography production cases were as follows:
19 cases from the District of Minnesota, 17
cases from the Southern District of Indiana, 17
cases from the Western District of Missouri,
16 cases from the District of Maryland, and 16
cases from the Eastern District of Michigan.
Table A-1. Top 5 Districts by
Number of Cases

Table A-2. Top 5 Districts by
Percentage of Caseload

#

District

%

19

Minnesota

5.1%

Southern Indiana

17

Southern Indiana

3.6%

Western Missouri

17

Central Illinois

3.6%

Maryland

16

Middle
Pennsylvania

3.4%

Eastern Michigan

16

Southern Illinois

3.2%

District

District
Minnesota

N

59

Federal Sentencing of Child Pornography: Production Offenses

Figure A-1. §2G2.1 Offenders in Each District
Fiscal Year 2019
N = 512

□ None

□ 1-5

□ 6-10

ef
SOURCE: U.S. Sentencing Commission, 2019 Datafile, USSCFY19.

■ 11-15

■ 16-20

C7

60

United States Sentencing Commission

Endnotes
1
U.S. Sent’g Comm’n, Report to the Congress: Federal Child Pornography Offenses (2012), https://
www.ussc.gov/sites/default/files/pdf/news/congressional-testimony-and-reports/sex-offensetopics/201212-federal-child-pornography-offenses/Full_Report_to_Congress.pdf [hereinafter 2012 Child
Pornography Report].
2
For a review of non-production child pornography offenses, see U.S. Sent’g Comm’n, Federal
Sentencing of Child Pornography: Non-Production Offenses (2021), https://www.ussc.gov/sites/default/files/
pdf/research-and-publications/research-publications/2021/20210629_Non-Production-CP.pdf [hereinafter
Non-Production Offenses Report].
3
Key Facts, Nat’l Ctr. for Missing and Exploited Child., (Mar. 2, 2021), https://www.missingkids.org/
ourwork/ncmecdata.
4

2012 Child Pornography Report, supra note 1, at 107–08.

5

Id. at 267.

6
As authorized by Congress, the Commission’s numerous research responsibilities include: (1) the
establishment of a research and development program to serve as a clearinghouse and information center for
the collection, preparation, and dissemination of information on federal sentencing practices, (2) the
publication of data concerning the sentencing process, (3) the systematic collection and dissemination of
information concerning sentences actually imposed and the relationship of such sentences to the factors set
forth in section 3553(a) of title 18, and (4) the systematic collection and dissemination of information
regarding the effectiveness of sentences imposed. 28 U.S.C. § 995(a)(12)–(16).
7

Pub. L. No. 108–21, 117 Stat. 650.

8

18 U.S.C. §§ 2251, 2252, 2252A, 2260.

9

18 U.S.C. § 2251(e).

10
The qualifying sex offenses include prior federal convictions under title 18, section 1591, chapter
71, chapter 109A, or chapter 117, or under section 920 of title 10 (article 120 of the Uniform Code of
Military Justice), or state convictions relating to aggravated sexual abuse, sexual abuse, or abusive sexual
conduct involving a minor or ward, or the production, possession, receipt, mailing, sale, distribution,
shipment, or transportation of child pornography, or sex trafficking of children. 18 U.S.C. § 2251(e).
11

Id.

12

Pub. L. No. 108–21, § 101, 117 Stat. 650.

13
A 4-level enhancement applies if the offense involved a minor who had not attained the age of 12.
U.S. Sent’g Comm’n, Guidelines Manual, §2G2.1(b)(1)(A) (Nov. 2018) [hereinafter USSG]. A 2-level enhancement
applies if the offense involved a minor who had attained the age of 12 years but not attained the age of 16
years. USSG §2G2.1(b)(1)(B).
14
A 2-level enhancement applies if the offense involved the commission of a sexual act or sexual
contact. USSG §2G2.1(b)(2)(A). A 4-level enhancement applies if the offense involved the commission of a
sexual act and conduct described in 18 U.S.C. § 2241(a) or (b). USSG §2G2.1(b)(2)(B).
15
A 2-level enhancement applies if the defendant knowingly engaged in distribution of child
pornography. USSG §2G2.1(b)(3).

Federal Sentencing of Child Pornography: Production Offenses

16
A 4-level enhancement applies if the offense involved material that portrays sadistic or masochistic
conduct or other depictions of violence, or an infant or toddler. USSG §2G2.1(b)(4).
17
A 2-level enhancement applies if the defendant was a parent, relative, or legal guardian of the minor
involved in the offense, or if the minor was otherwise in the custody, care, or supervisory control of the
defendant. USSG §2G2.1(b)(5).
18
A 2-level enhancement applies if, for the purpose of producing sexually explicit material or for the
purpose of transmitting such material live, the offense involved (A) the knowing misrepresentation of a
participant’s identity to persuade, induce, entice, coerce, or facilitate the travel of, a minor to engage in
sexually explicit conduct; or (B) the use of a computer or an interactive computer service to (i) persuade,
induce, entice, coerce, or facilitate the travel of, a minor to engage in sexually explicit conduct, or to
otherwise solicit participation by a minor in such conduct; or (ii) solicit participation with a minor in sexually
explicit conduct. USSG §2G2.1(b)(6).
19
USSG §2G2.1(d)(1). See also USSG §§3D1.1 (Procedure for Determining Offense Level on Multiple
Counts), 3D1.2 (Groups of Closely Related Counts), 3D1.3 (Offense Level Applicable to Each Group of
Closely Related Counts), 3D1.4 (Determining the Combined Offense Level), and 3D1.5 (Determining the
Total Punishment).
20
See, e.g., United States v. Peck, 496 F.3d 885, 890 (8th Cir. 2007) (noting that the defendant, who
was convicted of a single count of production of child pornography, received a 3-level increase in his offense
level under §2G2.1(d)(1) because of relevant conduct involving multiple victims).
21

USSG §2G2.2(c).

22

USSG §5G1.1(a).

23

USSG §4B1.5(a), (b).

24
If an offender’s final offense level or criminal history category resulting from a guidelines
determination before application of §4B1.5(a) exceeds those in §4B1.5(a), then no additional enhancement
would apply.
25
For purposes of §4B1.5, “prohibited sexual conduct” means any of the following: (i) any offense
described in 18 U.S.C. § 2426(b)(1)(A) or (B); (ii) the production of child pornography; or (iii) trafficking in child
pornography only if, prior to the commission of the instant offense of conviction, the defendant sustained a
felony conviction for that trafficking in child pornography. “Prohibited sexual conduct” does not include
receipt or possession of child pornography. The defendant engaged in a “pattern of activity” involving
prohibited sexual conduct if on at least two separate occasions, the defendant engaged in prohibited sexual
conduct with a minor. An occasion of prohibited sexual conduct may be considered for purposes of
§4B1.5(b) without regard to whether the occasion (i) occurred during the course of the instant offense; or (ii)
resulted in a conviction for the conduct that occurred on that occasion. USSG §4B1.5, comment. (n.4).
26
See USSG §§5D1.1(a)(1) (Imposition of a Term of Supervised Release) & 5D1.2(b) (Term of
Supervised Release) (policy statement “recommend[ing]” the “statutory maximum term of supervised release”
for all offenders convicted of “a sex offense,” including a child pornography offense).
27
Two offenders in this analysis account for only 0.3% of production offenders and therefore are not
visible in this graphic. One offender was convicted under 18 U.S.C. § 2244 (Abusive Sexual Contact) and one
offender was convicted under 18 U.S.C. § 1470 (Transfer of Obscene Material to Minors). Both offenders
engaged in production conduct that was relevant conduct to their instant offense.
28
Appendix A provides the geographic distribution of child pornography production cases sentenced
in fiscal year 2019.

61

62

United States Sentencing Commission

29
In fiscal year 2019, 61 offenders were sentenced under §2G2.1 via cross reference from §2G2.2
(Trafficking in Material Involving the Sexual Exploitation of a Minor; Receiving, Transporting, Shipping,
Soliciting, or Advertising Material Involving the Sexual Exploitation of a Minor; Possessing Material Involving
the Sexual Exploitation of a Minor with Intent to Traffic; Possessing Material Involving the Sexual
Exploitation of a Minor), 28 offenders were cross-referenced from §2G1.3 (Promoting a Commercial Sex Act
or Prohibited Sexual Conduct with a Minor; Transportation of Minors to Engage in a Commercial Sex Act or
Prohibited Sexual Conduct; Travel to Engage in Commercial Sex Act or Prohibited Sexual Conduct with a
Minor; Sex Trafficking of Children; Use of Interstate Facilities to Transport Information about a Minor), one
offender was cross-referenced from §2G3.1 (Importing, Mailing, or Transporting Obscene Matter;
Transferring Obscene Matter to a Minor; Misleading Domain Names), and one offender was cross-referenced
from §2X2.1 (Aiding and Abetting).
30

2012 Child Pornography Report, supra note 1, at 41-42.

31

Non-Production Offenses Report, supra note 2, at 17.

32

2012 Child Pornography Report, supra note 1, at 260.

33

Id.

34

Id. at 260–62.

35
Cases with sentences of 470 months or greater (including life) were included in the sentence
average computations as 470 months. The information presented in this analysis includes conditions of
confinement as described in §5C1.1.
36

See id.

37
Variance cases are those in which the sentence was outside the guideline range and where the court
did not cite any reason for departure from the Guidelines Manual for the sentence.
38
“Government sponsored” departures include cases in which a reason for the sentence indicated
that the prosecution initiated, proposed, or stipulated to a sentence outside of the guideline range, either
pursuant to a plea agreement or as part of a non-plea negotiation with the defendant. Substantial assistance
motions filed by the prosecution are categorized separately.
39
There are two types of “substantial assistance” motions filed by the prosecution—the first seeks a
downward departure below the applicable guideline range, and the second seeks a downward departure
below a statutory mandatory minimum sentence. Compare USSG §5K1.1, with 18 U.S.C. § 3553(e).
40
In three child pornography production cases, there was no production victim. In two cases the
offenders acted as accessories in a production offense and one case involved attempted production with no
identifiable victim.
41
For this report, the Commission relied on information from the Centers for Disease Control and
Prevention and the National Library of Medicine of the National Institutes of Health to categorize toddlers
as age one to three. See Ctrs. for Disease Control & Prevention, Positive Parenting Tips for Healthy
Child Development Toddlers (1–2 Years of Age) (2021), https://www.cdc.gov/ncbddd/childdevelopment/
positiveparenting/pdfs/toddlers-1-2-w-npa.pdf; Ctrs. for Disease Control & Prevention, Positive Parenting
Tips for Healthy Child Development Toddlers (2–3 Years of Age) (2021), https://www.cdc.gov/ncbddd/
childdevelopment/positiveparenting/pdfs/Toddlers-2-3-w-NPA.pdf; U.S. Nat’l Libr. of Med., Toddler
Development, MedlinePlus (Aug. 2, 2021), https://medlineplus.gov/toddlerdevelopment.html.
42

2012 Child Pornography Report, supra note 1, at 267.

43

The infants and toddlers in this category were in the presence of a co-participant who facilitated the

Federal Sentencing of Child Pornography: Production Offenses

remote production.

44

The age of the youngest victim is unknown in two offenses where the offender communicated with
the victims in person.
45

See supra Figure 13.

46
U.S. Dep’t of Just., Sextortion: Recognize, Prevent, Protect (2019), https://www.justice.gov/
file/1317551/download.
47
For the purposes of this report, the other forms of bullying are non-violent or non-sexual threats or
pressure.
48

2012 Child Pornography Report, supra note 1, at 264.

49
Some offenders had more than one type of prior contact sex offense against a minor. Therefore, the
percentages exceed 37.5%.
50
The pornography sent to a minor included pornography depicting the offender, other adult
pornography, or child pornography.
51

USSG §2G2.1(b)(5).

52

See supra Figure 17.

53

USSG §2G2.1(b)(2).

54

USSG §2G2.1(b)(6).

55

USSG §4B1.5(a).

56

USSG §4B1.5(b).

63

United States Sentencing Commission
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