NLR man gets 12 years for child porn

Judge rejects defense’s claim of unfairness in federal sentencing guidelines

A North Little Rock man originally charged by state authorities with 200 counts of distributing, possessing or viewing child pornography was sentenced Thursday to 12 years in federal prison.

Benjamin Nicholas King, 35, was arrested in June 2018 by Little Rock police after a search of his home in the 1100 block of Mission Road in North Little Rock by officers from the Little Rock and North Little Rock police departments and Arkansas State Police. During the search, police seized two laptops and two external hard drives.

King was federally indicted in February 2019 on three counts of distribution of child pornography and one count each of possession of child pornography, possession with intent to distribute marijuana, and possession of a firearm in furtherance of a drug trafficking crime. He pleaded guilty last January to one count of distribution of child pornography in exchange for the government’s agreement to dismiss the remaining counts contained in the indictment.

King, who has been jailed since his arrest, was escorted into the courtroom by federal marshals. His attorney, Christian Alexander of Jacksonville, argued for leniency for his client, citing childhood trauma, mental health issues and what he characterized as an inherent unfairness in federal sentencing guidelines.

“Child porn cases are always hard for us because while the crime is a level 22, they just get hammered with these enhancements,” Alexander said.

For sentencing purposes, King’s base offense level for the crime of distribution of child pornography was calculated at 22. From there, he received a two-level enhancement because the offense involved a minor child younger than 12, a five-level enhancement for distribution in exchange for any valuable consideration, a four-level enhancement because the offense involved sadistic or masochistic conduct, and a five-level enhancement because the offense involved at least 600 images.

King received a three-level decrease for acceptance of responsibility, bringing his total offense level to 35.

Combined with a criminal history score of 1 and a criminal category of 1, the guideline sentencing range for King was calculated at between 14 years and 17½ years in prison, 5 years to life on supervised release and a fine range between $40,000 and $250,000.

Those calculations are part of the Sentencing Reform Act of 1984, which was intended to bring about greater equity in sentencing of federal defendants.

Based on the severity of the offense, the guidelines assign most federal crimes to one of 43 offense levels. Offenders are assigned to one of six criminal history categories based upon the extent of past misconduct.

“When that came about, computer technology was completely different from what it is today,” Alexander said. “As time has advanced, our guidelines haven’t changed and neither has the level of offense.”

The effect of multiple enhancements, he said, was to “shoot ‘em up the guidelines chart,” which in turn, he said, results in severe sentences not always appropriate to the conduct being prosecuted.

One example, he said, is a two-level enhancement for use of a computer in the offense, which King was not subject to due to the dismissal of the possession of child pornography count.

“Probably [that’s how] 99% of all child porn is disseminated today,” Alexander said. “If that’s the case, then they just need to go in and do away with that enhancement.”

“That wouldn’t apply in this case,” U.S. District Judge James M. Moody Jr. began.

“I’m just using that as an example,” Alexander said. “I can use another one if you want me to.”

“Nothing in the way things evolved changes the fact that this person was under 12,” Moody said. “Nothing about modern technology changes that enhancement.”

Moody pointed out that nothing in Alexander’s argument would affect the enhancements for the counts of distribution in exchange for valuable consideration or portrayal of sadistic or masochistic conduct either.

“I guess you could argue that it’s easier to store 600 images,” Moody began.

“It is easier to store them that way,” Alexander continued. “As cameras got better, now we’re filming things in 60 frames per second, 30 frames per second, and if it’s shot in 60 fps video, a 10-second clip could be 600 images.”

Assistant U.S. Attorney Kristin Bryant, arguing for a lower-end guideline sentence of at least 14 years, said such cases had become so prevalent that prosecutors and the courts needed to step in to send a strong message.

“This offense is becoming all too commonplace,” she said. “You’re seeing defendants every day charged with possession of child pornography. It’s almost as if people are becoming desensitized to it. And unless someone’s producing child pornography, we should just give someone a slap on the wrist because they just have pictures, they just have videos, they weren’t actually touching kids.”

But, she said, without consumers and distributors of child pornography, there would be no market for producers of child pornography to exploit.

“An argument I continue to make is that we need to send a message with these sentences,” Bryant said. “There is harm done just by possessing, viewing and distributing child pornography, even if you’re not specifically harming a child.”

Although Moody indicated he found little merit in Alexander’s argument, he

did vary downward by sentencing King to 12 years in prison, two years below the minimum guideline sentence of 14 years.

In addition, he sentenced King to an additional 7 years supervised release after he gets out of prison and ordered him to pay $9,000 in restitution divided equally between three victims.

Moody read an extensive list of conditions King will be subject to after leaving prison, including a requirement to register as a sex offender, to avoid contact with minor children without prior authorization by the probation office, to attend drug and mental health counseling, enroll in sex offender treatment including random polygraph tests, and to submit to the installation of monitoring software on any computers he uses, among others.