United States v. Kemmish

James Kemmish (defendant) was caught in the San Diego International Airport attempting to smuggle child-pornography videotapes and advertisements into the United States. Federal agents searched Kemmish’s home pursuant to a search warrant and found video reproduction equipment, blank videotapes, hundreds of videotapes containing child pornography, and large quantities of advertising materials for Overseas Male (OSM), a Mexico City-based child-pornography producer, for which Kemmish was the sole United States-based distributor. The federal government (plaintiff) charged Kemmish with advertising, transporting, reproducing, and possessing child pornography. Kemmish pleaded guilty. At the sentencing hearing, the government recommended a 295-month sentence. The government calculated its recommendation using the federal sentencing guidelines range for Kemmish’s offenses plus a sentence enhancement for Kemmish’s pattern of sexually exploiting minors. The district court sentenced Kemmish to 63 months, a downward deviation from the guidelines, set a value for the child pornography Kemmish intended to distribute without citing a valuation source, and held that the sentence enhancement for sexual exploitation of minors was inapplicable because it only applied to producers of child pornography, not traffickers. The government appealed, arguing that Kemmish’s role as the only American distributor for a major child-pornography ring constituted sexual exploitation of minors.