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US v. Larkin, 09-2619

Sentencing challenge in child pornography conviction

US v. Larkin, 09-2619, concerned a challenge to the district court's imposition of a statutory maximum sentence of 360 months, followed by a life term of supervised release, upon a defendant convicted of producing child pornography in violation of 18 U.S.C. section 2251(a).


In affirming, the court held that the district court properly considered defendant's five-year-old daughter as a second victim in calculating her guidelines as the depictions contained in photographs at issue meet the definition of lascivious conduct as defined in 18 U.S.C. section 2251(2)(B)(iii).  The court also held that the government did not breach the plea agreement by providing the district court with briefing on the applicability of section 2G2.1(b)(3)(B)(I).  Lastly, the court held that the district court did not violate the ex post fact clause when it upwardly departed five levels, and that the sentence imposed was reasonable.

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