“One Frame, One Image” – The Eleventh Circuit’s New Rule for Calculating § 2G2.2(b)(7) Enhancements in United States v. Kluge

I. Introduction

In United States v. Karl Patrick Kluge, No. 23-10697 (11th Cir. July 31, 2025), the Court of Appeals for the Eleventh Circuit addressed three recurring points of federal criminal practice:

1. How to count “images” when applying the child-pornography “image table” in U.S.S.G. § 2G2.2(b)(7);
2. Whether the Fifth and Sixth Amendments require jury fact-finding for restitution imposed under the Amy, Vicky, and Andy Child Pornography Victim Assistance Act of 2018 (18 U.S.C. § 2259); and
3. What procedural notice is required before a district court may incorporate “standard” conditions of supervised release.

While the court ultimately affirmed Kluge’s 97-month sentence and $39,000 restitution order, it simultaneously announced a sweeping new precedent: for purposes of § 2G2.2(b)(7) every individual video frame depicting child pornography counts as one “image.” This textual holding rejects the Sentencing Commission’s long-used commentary (75 images per video) and may dramatically increase guideline exposure for video-based offenses.

II. Summary of the Judgment

1. Sentencing Enhancement (§ 2G2.2(b)(7)). Applying Kisor v. Wilkie-style analysis, the court found no textual ambiguity: an “image” means a single fixed visual depiction; because a video is merely a rapid succession of still images (“frames”), each frame must be counted. Nonetheless, Kluge’s own concession that his 150 videos plus 300 still photos exceeded 600 frames rendered the numerical dispute immaterial to his guideline range; the sentence was therefore affirmed.

2. Restitution. Relying on Dohrmann, Gatlin, and Rothenberg, the Eleventh Circuit reiterated that: (a) Apprendi/Alleyne do not apply to restitution, so judges—not juries—may find loss facts by a preponderance; and (b) district courts need not “disaggregate” the component of a victim’s losses attributable to the original abuser.

3. Supervised-Release Conditions. Guided by Hayden, the court held that oral reference to “mandatory and standard conditions” coupled with an invitation to object suffices to preserve the conditions later memorialised in the written judgment.

III. Analysis

A. Precedents Cited and Their Influence

• Kisor v. Wilkie, 588 U.S. 558 (2019) – Established a three-step test for deference to agency interpretations. The panel exhaustively applied Step 1 and concluded no ambiguity existed, making Stinson/Kisor deference inapplicable.
• United States v. Dupree, 57 F.4th 1269 (11th Cir. 2023) (en banc) – Framework for analyzing guideline commentary after Kisor. Used to reinforce that commentary is not binding if guideline text is clear.
• United States v. Phillips, 54 F.4th 374 (6th Cir. 2022) (Larsen, J., conc.), and United States v. Hafferty, 107 F.4th 175 (3d Cir. 2024) – Sister-circuit opinions favouring a frame-by-frame approach; the Eleventh Circuit embraced these textual analyses and created a solid front against the commentary’s 75:1 ratio.
• Apprendi, Alleyne, and Eleventh Circuit Restitution Cases (Dohrmann, Gatlin, Rothenberg) – Framed the constitutional discussion and cemented the Eleventh Circuit’s position that restitution is essentially compensatory and not subject to jury fact-finding requirements.
• United States v. Hayden, 119 F.4th 832 (11th Cir. 2024) – Confirmed that generic reference to “standard conditions” plus an opportunity to object satisfies due-process notice for supervised release.

B. Legal Reasoning

1. Textual Plainness Over Commentary. Using dictionaries contemporaneous with the 2003 guideline, the court defined “image” as “a fixed visual representation.” A video, composed of sequential frames, inherently contains multiple such fixed representations. Because the text was clear, commentary assigning “75 images per video” fell outside the “zone of ambiguity,” eliminating any need for deference.
2. Purpose and Absurd-Results Arguments Rejected. The Government’s purpose-based justification (“avoid harsh sentences from high frame counts”) could not override plain text. The court emphasized that policy concerns belong to Congress or the Sentencing Commission, not to judicial interpretation.
3. Restitution Constitutionality. The panel reaffirmed circuit precedent holding restitution non-penal for Sixth-Amendment purposes. Without a statutory maximum, Apprendi does not apply; without a criminal penalty, Alleyne is irrelevant.
4. Disa​ggregation Doctrine Clarified. Consistent with Rothenberg, a judge need only acknowledge—without quantifying—the defendant’s limited causal role when awarding the statutory minimum $3,000 per victim.
5. Procedural Notice for Supervised Release. The oral statement referencing “standard conditions” plus an invitation for objections sufficed; discrepancies between oral and written pronouncements did not exist, negating any plain-error claim.

C. Potential Impact

• Sentencing Exposure. The “one frame, one image” rule can multiply guideline calculations exponentially—modern videos record 24–60 frames per second. Even a single 10-minute video (~14,400–36,000 frames) now triggers the maximum five-level enhancement, and defendants possessing multiple videos could face requests for upward departures based on quantity alone.
• District-Court Procedure. Probation offices must adapt forensic protocols: establishing exact frame counts (or a reasonable estimate via duration × frame-rate) will now be critical evidence at sentencing.
• Agency Commentary Authority. The opinion narrows Stinson/Kisor deference within the Eleventh Circuit, signalling that commentators must ensure textual support in forthcoming guideline amendments.
• Restitution Litigation. The reaffirmation of judicial fact-finding maintains efficiency but preserves a circuit split (see Eighth Circuit’s pending Ellingburg ex post-facto certiorari). Should the Supreme Court characterise restitution as criminal punishment, Kluge’s rule could be revisited.
• Supervised Release Drafting. Prosecutors and defense counsel alike must heed the lesson of Hayden/Kluge: if the judge references district-wide standard conditions and pauses for objections, silence will waive future challenges.

IV. Complex Concepts Simplified

• § 2G2.2(b)(7) “Image Table”: A sliding scale in the Sentencing Guidelines adding 2–5 offense levels depending on the number of pornographic “images” possessed. More levels = higher guideline range.
• Frames vs. Videos: A video consists of rapid “frames” (pictures). At 30 fps, a 1-second clip has 30 frames (images).
• Stinson/Kisor Deference: Courts defer to guideline commentary only when (1) text is ambiguous, (2) commentary is reasonable, and (3) reflects the Commission’s considered, authoritative view.
• Apprendi/Alleyne Rule: Any fact that increases the statutory maximum (Apprendi) or mandatory minimum (Alleyne) of a criminal penalty must be proved to a jury beyond a reasonable doubt. Not applicable where no statutory ceiling exists or where relief is deemed civil/compensatory.
• Restitution under § 2259: A mandatory award compensating child-pornography victims for aggregate losses, with a floor of $3,000 per identified victim regardless of precise causation.
• Plain-Error Review: A four-step appellate standard requiring (1) error, (2) that is plain, (3) affecting substantial rights, and (4) seriously affecting the fairness or integrity of proceedings.

V. Conclusion

United States v. Kluge reshapes Eleventh-Circuit child-pornography sentencing by jettisoning the Sentencing Commission’s 75-image fiction and anchoring the guideline calculation to every frame of illicit video. The ruling simultaneously underscores the robustness of existing restitution jurisprudence and clarifies procedural expectations for supervised release. Practitioners must anticipate markedly higher guideline exposure in video cases, marshal expert evidence on frame counts, and preserve objections early. Unless and until the Sentencing Commission revises § 2G2.2 or the Supreme Court revisits the restitution-as-punishment debate, Kluge’s “one frame, one image” rule stands as controlling law throughout the Eleventh Circuit, with potential to influence other jurisdictions confronting the same textual dilemma.