## Facts

- John Nash (age 22) was in a consensual sexual relationship with E.L. (age 16), which was lawful under Alabama’s age-of-consent law.
- E.L. took four sexually explicit photographs of herself and texted them to Nash; Nash did not request the images and did not distribute them.
- Federal prosecutors charged Nash with possession of child pornography based on his possession of those images; he pleaded guilty.
- The record indicated Nash possessed no other child pornography and had pursued intensive counseling, including treatment related to previously untreated ADHD.
- The case proceeded to sentencing, where the Probation Office and the government urged guideline calculations under U.S.S.G. § 2G2.2 that would substantially increase the advisory range.

## Issues

1. Whether the U.S.S.G. § 2G2.2(c)(1) cross-reference applied, given Nash’s objections and the government’s proof regarding disputed facts.
2. Whether, even without the cross-reference, the advisory guideline range under § 2G2.2 overstated the seriousness of Nash’s conduct.
3. Whether a below-guidelines sentence was warranted under 18 U.S.C. § 3553(a) based on the atypical facts, Nash’s history and characteristics, and the need for a sentence sufficient but not greater than necessary.

## Decision

- The court declined to apply the § 2G2.2(c)(1) cross-reference because Nash did not admit facts establishing it and the government presented no testimony to prove the disputed predicates.
- The court calculated the advisory guideline range without the cross-reference but concluded the resulting range still overstated the seriousness of the offense.
- The court imposed a substantial downward variance, finding the reduced sentence sufficient but not greater than necessary under § 3553(a).

## Legal Principles

- At sentencing, the government bears the burden to prove disputed facts supporting guideline enhancements or cross-references by a preponderance of the evidence.
- A guideline cross-reference requiring specific factual predicates cannot be applied where the defendant contests the facts and the government fails to carry its evidentiary burden.
- District courts may vary from the advisory Guidelines when, after considering § 3553(a), the guideline range does not proportionately reflect the defendant’s conduct and characteristics.
- In applying § 3553(a), courts may consider whether guideline enhancements common to many cases (e.g., computer use and image-related adjustments under § 2G2.2) produce a range that does not meaningfully distinguish less culpable conduct from more aggravated conduct.

## Conclusion

The court treated the case as an atypical child-pornography possession matter arising from a lawful relationship and a small set of self-produced images, rejected an unproven § 2G2.2 cross-reference, and imposed a below-guidelines sentence based on an individualized § 3553(a) assessment.


United States v. Nash, 1 F. Supp. 3d 1240 (N.D. Ala. 2014)