3rd Circuit Upholds 30-year Sentence in Child Pornography Case

In U.S. v. Hardy, the Court of Appeals for the Third Circuit upheld the thirty year prison sentence handed down by the United States District Court for the Western District of Pennsylvania when defendant Kelly Hardy pleaded guilty to three child pornography offenses. 2011 U.S. App. LEXIS 24475.

On April 16, 2009, law enforcement officers conducted a search of Hardy’s home and seized numerous “pairs of soiled young girls’ underwear” and a large amount of electronic equipment, “including 14 desktop computers, three laptop computers, 60 hard drives, over 4,000 compact discs and digital versatile discs, and over 3,000 floppy discs, eight thumb drives, 36 zip discs, two camcorders, one Palm Pilot, one digital camera, one 35-millimeter camera, two webcams, one cellphone, and over 800 video tapes.” Forensic analysis of the computers revealed thousands of images of child pornography, many of which Hardy had received and exchanged electronically. The images depicted pre-pubescent children of various ages engaged in sexual acts. Officers also accessed Hardy’s sexually explicit internet chats with another man, with whom Hardy discussed “breaking into homes, raping children, killing them, and making their parents watch.” Id. at 1-3.

Hardy pleaded guilty to transportation of child pornography, in violation of 18 U.S.C. § 2252(a)(1) (Count One); receipt of child pornography, in violation of 18 U.S.C. § 2252(a)(2) (Count Two); and possession of child pornography, in violation of 18 U.S.C. § 2252(a)(4)(B) (Count Three). During his sentencing hearing, Hardy called Dr. Jolie Brams to testify about his psychological history and “deeply ingrained sexual urges.” Because Hardy’s offense level was 42 and he had no criminal history points, his applicable Guidelines range was 360 months to life. After rejecting his request for a downward variance, the Court sentenced Hardy to 360 months in prison, consisting of 240 months for Count One and 120 months for Count Two, to run consecutively.

Hardy appealed the sentence, arguing that the five-level enhancement he received under USSG § 2G2.2(b)(3)(B) was predicated on the erroneous factual finding that he distributed pornographic images of children for a “thing of value,” namely, other such images. Id. At 4-5.

The Court of Appeals upheld the sentence, referencing the applicable sentencing guidelines. Those guidelines hold that for purposes of USSG § 2G2.2(b)(3)(B), “distribution” includes “bartering or other in-kind transaction, that is conducted for a thing of value, but not for profit.” The Court wrote, “The presentence investigation report indicates that Hardy made such exchanges. Because the conclusion that Hardy made in-kind exchanges of child pornography finds support in the record, we see no clear error in the District Court’s application of the five-level enhancement.” Hardy at 5.

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