Abraham factors are sentencing factors federal courts have recently used
to sentence criminal defendants convicted of child pornography offenses.
The courts originally used 18 USCS Appx § 2G2.2 to determine sentencing
for child porn cases, but these guidelines were not based on expertise
or careful study of empirical data. This often resulted in sentencing
exceeding the statutory maximum in run-of-the-mill cases involving first-time
The point of the factors is to distinguish between offenders based on their
culpability, dangerousness, and risk to reoffend. Before the court reviews
the recommended factors, they prefer to impose a base offense level.
When imposing sentences, the court will consider the Sentencing Commission’s
1) the content of an offender's child pornography collection and the
nature of an offender's collecting behavior (in terms of volume, the
types of sexual conduct depicted in the images, the ages of the victims
depicted, and the extent to which an offender has organized, maintained,
and protected his collection over time, including through the use of sophisticated
2) the degree of an offender's engagement with other offenders —
in particular, in an Internet "community" devoted to child pornography
and child sexual exploitation; and
3) whether an offender has a history of engaging in sexually abusive, exploitative,
or predatory conduct in addition to his child pornography offense.
(United States v. Abraham, 944 F. Supp. 2d 723 (D. Neb. 2013).)
· In applying the enhancements for materials depicting prepubescent
minors and violence, the Court will consider factors that will help separate
the more significant and sophisticated offender from the common offender.
For example, the Court will take into account the extent to which the
offender specifically sought out such material.
· The nature of the material involved in a given case is also relevant.
· Number of images in possession, duration and intensity of collecting
behaviors, investments made towards collecting, and manner in which material
Do the sentencing guidelines mapped out in
United States v. Abraham, 944 F. Supp. 2d 723 (D. Neb. 2013) apply to other computer crimes?
Good criminal defense lawyers often look to favorable arguments made in
other areas of criminal law and try to apply them to their own cases.
Anytime cybercrimes are charged there may be similar defenses regarding
both sentencing issues as well as Fourth Amendment issues. For example
an illegal government search operation that violates a criminal defendant’s
rights in a child pornography case may be argued as precedent to suppress
evidence of an unlawful search by federal law enforcement in a white collar
case if the government used the same unlawful network investigation technique.
Unfortunately there is no reason to believe that the sentencing guidelines in
Abraham apply to a broader range of other computer crimes. First, § 2G2.2
lays out the sentencing guidelines for offenses involving commercial sex
acts, sexual exploitation of minors, and obscenity. The statute did not
say anything about other computer-related crimes. Second, the Abraham
factors use § 2G2.2 as guidance, thus implying that the crimes for
which a sentence is required involves the sexual exploitation of minors.
Third, the point system involved in sentencing is based on factors like:
number of images, nature of collecting behavior, a history of sexually
abusive behavior, etc. These specific factors do not appear to be broad
enough apply to computer crimes that were unrelated to child pornography.
If you would like to consult with an attorney about federal computer crimes
contact a criminal defense attorney at
Berry Law Firm.