New Federal Case on Sentencing in Child Porn Cases

Section2G2.2(b)(3)(F) of the Federal Sentencing Guildlines enhancement for distribution of child pornography did not require showing of intent to distribute; the enhancement was warranted based on use of peer-to-peer file-sharing program The defendant used eMule and the eDonkey peer-to-peer file sharing network to download and share images of child pornography. When a user initiates a download, the eMule program automatically places the material into shared folders, accessible to other Internet users. The defendant told agents that he always attempted to transfer his child-pornography files out of the shared eMule folders, and the government presented no evidence that any of the shared folders contained child pornography. The defendant pled guilty to knowingly and intentionally receiving child pornography.” The district court imposed the two level enhancement under §2G2.2(b)(3)(F) for basic “distribution” of child pornography, instead of adopting the PSR’s recommendation of the five level enhancement under §2G2.2(b)(3)(B). The court ultimately arrived at a final range of 70 to 87 months, and imposed a sentence of 87 months. On appeal, the defendant contended that in order for §2G2.2(b)(3)(F) to apply, an accompanying showing of intent to distribute illicit material was required. The Tenth Circuit disagreed. Under the broad definition of distribution “we hold that an intent to distribute is not required for an act to qualify as distribution under §2G2.2(b). More specifically, we conclude under these facts that when an individual uses a peer-to-peer network file sharing program with knowledge that the program will deposit downloaded child-pornography files into a shared folder accessible to other users – e.g., 4 September 2012 rendering files only a mouse-click away – then that person has engaged in an act related to the transfer of child pornography. In other words, he has distributed child pornography within the meaning of    §2G2.2(b).” Several other circuits have adopted a broad construction of §2G2.2, declining to make an intent-to-distribute determination a prerequisite for a finding of “distribution.” See, e.g., United States v. Bolton, 669 F.3d 780 (6th Cir. 2012); United States v. Layton, 564 F.3d 330 (4th Cir. 2009);United States v. Carani, 492 F.3d 867 (7th Cir. 2007). Finally, the appeals court explained that “[i]rrespective of whether it was [the defendant’s] subjective desire to prevent sharing of his child pornography, it is indisputable that, by using eMule, [he] foreclosed that option. A defendant’s inability to adjust a peer-to-peer file-sharing program’s default settings to prevent sharing cannot provide an effective safe harbor for that defendant’s continued use of the network to violate the law. More specifically, while other file-sharing software may permit the user to completely block third-party sharing, eMule does not, and [the defendant’s] purported personal desire not to share is irrelevant under these circumstances.” United States v. Ramos 2012 WL 3642432 (10th Cir. 2012)

This case analysis is reprinted with the permission of our friends at the law firm of Joaquin Duncan LLP, they can be reached at 817-282-9050.