Conviction under UCMJ’s catchall provision for discreditable conduct cannot serve as sentence enhancer for federal child pornography conviction

SENTENCING United States v. Brown, No. 07-8065, ___ F.3d ___ (10th Cir. Jun 23, 2008)(Wyoming). Appeal of sentence for possession of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B). HELD: District court erred by using defendant’s previous conviction under Article 134 of Uniform Code of Military Justice (UCMJ) to enhance sentence for possession of child pornography in violation of 18 U.S.C. § 2252A. First, defendant’s previous conviction under UCMJ Article 134 was conviction for conduct of nature to bring discredit upon the armed forces (i.e., possession of child pornography in violation of 18 U.S.C. § 2252A). It was not conviction for violation of 18 U.S.C. § 2252A itself. Second, plain language of § 2252A does not include UCMJ Article 134 convictions as sentence enhancers. Read the opinion here.