In the 

United States Court of Appeals 

For the Seventh Circuit ____________________

No. 14‐2557

UNITED STATES OF AMERICA,

Plaintiff‐Appellee,

v.

JASON NICOSON,

Defendant‐Appellant.

____________________

Appeal from the United States District Court for the

Northern District of Illinois, Western Division.

No. 12 CR 50046‐1 — Frederick J. Kapala, Judge.

____________________

ARGUED JUNE 9, 2015 — DECIDED JULY 16, 2015

____________________

Before POSNER, KANNE, and SYKES, Circuit Judges.

POSNER, Circuit Judge. The defendant is sexually attracted

to children, specifically girls 5 to 12 years old. So far as we

know he does not molest girls, but he solicits, obtains, views,

and makes available for distribution videos and images of

these very young girls in lewd poses. He pleaded guilty to

two counts of transportation of child pornography, in viola‐

tion of 18 U.S.C. § 2252A(a)(1), which subjects anyone who

“knowingly mails, or transports or ships using any means or
2 No. 14‐2557

facility of interstate or foreign commerce or in or affecting

interstate or foreign commerce by any means, including by

computer, any child pornography” to a maximum sentence

of 20 years (40 for certain recidivists). Id., § 2252A(b)(1). Each

count was for transporting child pornography over the In‐

ternet. The judge imposed consecutive sentences on the de‐

fendant—240 months (20 years) on the first count and 55

months (about four and a half years) on the second, for a to‐

tal of 295 months (almost twenty‐five years).

The presentence report had calculated the defendant’s

guidelines sentencing range to be 151 to 188 months on the

basis of U.S.S.G. § 2G2.2. But the district judge decided to

base the defendant’s sentence on another guideline, U.S.S.G.

§ 2G2.1, designed for violators not of 18 U.S.C. § 2252A(a)(1)

but of 18 U.S.C. § 2251(a), which subjects anyone who induc‐

es a minor to engage in “sexually explicit conduct for the

purpose of producing any visual depiction of such conduct

or for the purpose of transmitting a live visual depiction of

such conduct” to a maximum prison sentence of 30 years (or

50 years or even life, depending on the defendant’s record of

recidivism). Id., § 2251(e). In applying guideline section

2G2.1, despite its connection to a statute that the defendant

was not convicted of violating, the judge relied on section

2G2.2(c)(1). That section, applicable to violators of 18 U.S.C.

§ 2252A(a)(1), provides that if the defendant’s offense “in‐

volved ... seeking by notice or advertisement, a minor to en‐

gage in sexually explicit conduct for the purpose of produc‐

ing a visual depiction of such conduct or for the purpose of

transmitting a live visual depiction of such conduct, apply

§ 2G2.1.” Section 2251(a) prescribes a maximum sentence, as

we said, of 30 years. Yet the judge, noting that the guidelines

range applicable to the defendant under guideline section
No. 14‐2557 3

2G2.1 was 324 to 405 months, sentenced him as we said to

295 months—almost 25 years—even though the maximum

sentence for violating section 2252A(a)(1) is only 20 years.

But remember that the 295‐month sentence was actually two

sentences, each for a different count of violating section

2252A(a)(1), and the judge imposed the two sentences con‐

secutively, which the defendant does not challenge.

For guideline section 2G2.1 to apply, as explained in sec‐

tion 2G2.2(c)(1), the defendant had to have sought “by notice

or advertisement, a minor to engage in sexually explicit con‐

duct,” and had to have done that “for the purpose of pro‐

ducing a visual depiction of such conduct or ... transmitting

a live visual depiction” of it. To understand the visual depic‐

tion, one needs to understand the relevant technology. A

webcam[era] is “a video camera that feeds or streams its im‐

age in real time to or through a computer to computer net‐

work. When ‘captured’ by the computer, the video stream

may be saved, viewed or sent on to other networks via sys‐

tems such as the internet, and email as an attachment.”

“Webcam,” Wikipedia, https://en.wikipedia.org/wiki/

Webcam (visited July 9, 2015). The webcam can either be

built into the user’s computer, in which case it generally fac‐

es the operator of the computer and takes a video of him that

can be transmitted via the computer to another person’s

computer, or it can be detachable from but connected to the

computer by a wire called a USB cable. The field of vision of

the external webcam is thus not limited to what the operator

of the computer can see. But unlike a conventional camera, a

webcam does not store any of the images it photographs or

records. Instead it conveys them through the cable to the

computer, where they are stored on the computer’s hard
4 No. 14‐2557

drive and can be accessed through a folder on the computer

screen.

A number of videos of child pornography were found on

the defendant’s two computers, but to be within the scope of

guideline section 2G2.1 he had to have enticed or sought to

entice a minor to pose for a video or camera shot while the

minor was engaged in sexually explicit conduct. He could

thus have had in his computer any number of obscene vide‐

os without having had anything to do with their production,

in which event the guideline section would not be applica‐

ble, as he would not have solicited the underage performer.

But the government argued and the judge agreed that the

defendant’s webcam had recorded (and transmitted to his

computer, where they were found) three still images of a

“live” obscene performance by one of the young girls—what

is called a “live feed,” “live” meaning that the performance

shown on the computer screen and recorded in part by the

webcam occurred as it was being filmed. The inference that

the images were recorded by a webcam was based on the

low quality of the recordings and the presence of screen re‐

flection.

The significance of this evidence was that the defendant

was more likely to have solicited a live performance for

transmission to him than a performance that would be rec‐

orded and the video of it received by him at some subse‐

quent time; for if the recordings weren’t live, he wouldn’t

have to settle for low‐quality images. There was evidence

that in online chat rooms of persons sharing his sexual inter‐

ests the defendant had often expressed a desire for videos of

live sexual performance by young girls, and from this the
No. 14‐2557 5

government and the judge inferred that he had solicited the

girl to perform in the video that he photographed.

An abiding puzzle is why he was content to take still im‐

ages of pornographic videos displayed on his computer

screen; his webcam could take videos, which could have

been transmitted to his computer and thus be available to

him to watch whenever he wanted. But it’s enough that

there is a basis for a reasonable inference that he solicited the

live performance that he photographed with his webcam. He

unquestionably sought child‐pornography videos from his

chat‐room cronies, and that seeking could be expected to in‐

duce one or more of the cronies to arrange for a live perfor‐

mance and beam it to him, in which event he would be the

principal in the solicitation of the performing girl, and the

crony his agent. His possession of the recording (in the form

of the still photos) of a live performance was evidence that

he had sought “by notice or advertisement, a minor to en‐

gage in sexually explicit conduct for the purpose of produc‐

ing a visual depiction of such conduct.”

It’s true that the government’s attempt to prove, from

blurs in the still photos that the webcam took and transmit‐

ted to the defendant’s computer, that the computer screen

was indeed exhibiting a live feed was weak. But it is difficult

to see why he would have been taking still photos of a video

that he had downloaded if it was not a live feed and there‐

fore a video that he could watch on his computer at any

time. And it is undeniable from transcripts of his conversa‐

tions in the chat rooms that he indeed sought minors to en‐

gage in sexually explicit conduct for the purpose of produc‐

ing the live type of visual depiction that gratified his sexual

tastes. That made him subject to the section 2G2.1 guideline
6 No. 14‐2557

regardless of whether his webcam recorded a live perfor‐

mance exhibited on his computer screen.  

AFFIRMED