What are Abraham Factors?
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 offenders.
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 recommended factors:
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 technology);
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 was obtained.
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.