Child Porn Distribution Is Relevant Conduct Of Possession Offense

US v. McVey: McVey was convicted of possession of child pornography based on a DVD he received from an undercover police officer.  During a statement to police after his arrest, McVey admitted that he had uploaded child pornography to the Internet five or six times over the course of ten years.  In addition, investigators found a tip report of McVey uploading child pornography 30 months prior to his arrest.  At sentencing, the district court concluded that the uploading constituted relevant conduct, and therefore triggered the Guideline distribution enhancement. McVey was sentenced to a term just below the resulting Guideline range.

On appeal, the Fourth Circuit affirmed the district court's relevant conduct determination.  The court first concluded that the proper standard of review was clear error, rather than de novo, because the issue was ultimately about the weighing of evidence, not the legal analysis used to determine whether something was relevant conduct.  The court then went on to conclude that the district court did not clearly err in finding that McVey's distribution constituted relevant conduct.  Particularly, the court relied on McVey's statement that he had distributed child pornography several times over the past ten years and the similarity of his offense of conviction (possession) with the prior conduct (distribution).  The court noted that "[p]ossession is a necessary prerequisite for distribution."