United States v. Bennett
839 F.3d 153
| 2d Cir. | 2016Background
- Defendant Darrell Bennett pled guilty to possession of child pornography under 18 U.S.C. § 2252A(a)(5)(B) after DHS agents downloaded child-pornography files from his GigaTribe account using a password he supplied to an undercover agent.
- Forensic analysis found 208 images and ~79 videos; Bennett had shared his GigaTribe password ~221 times with ~174 users, often in "pass-for-pass" exchanges (password-for-password) to obtain others' shared files.
- The Probation Office calculated an adjusted offense level that yielded a Guidelines range of 97–120 months (limited by the 120-month statutory maximum), recommending 97 months; the PSR applied a two-level distribution enhancement under U.S.S.G. § 2G2.2(b)(3)(F).
- The Government argued for a five-level enhancement under U.S.S.G. § 2G2.2(b)(3)(B) (distribution "for the receipt, or expectation of receipt, of a thing of value") based on Bennett’s pass-for-pass exchanges; the District Court adopted that five-level enhancement.
- The District Court then misstated the Guidelines range as 135–168 months (Criminal History I, offense level 33), commented that the statutory maximum was 10 years, and sentenced Bennett to 84 months (7 years), below both the miscalculated Guidelines range and the statutory maximum.
- On appeal, the Second Circuit upheld the five-level § 2G2.2(b)(3)(B) enhancement but held the District Court plainly erred by failing to treat the statutory maximum as the operative Guidelines sentence under U.S.S.G. § 5G1.1(a); the sentence was vacated and remanded for resentencing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 2G2.2(b)(3)(B) five-level enhancement applies to file-sharing conduct | Gov't: Bennett’s pass-for-pass exchanges show distribution "for the receipt" of a thing of value (barter), so the five-level enhancement applies | Bennett: His conduct was "simple file sharing," not a quid pro quo exchange warranting the five-level enhancement | Court: Enhancement applies—evidence of repeated pass-for-pass exchanges and explicit quid pro quo expectations satisfies the standard for (B) |
| Whether any use of P2P/file-sharing automatically triggers (B) | Gov't: Some circuits treat file-sharing as inherently reciprocal; enhancement appropriate when file-sharing used to trade | Bennett: File-sharing can be unilateral; no per se rule should apply | Court: Rejects per se rule; whether (B) applies is fact-specific; here facts met the standard |
| Whether District Court miscalculated Guidelines by not applying § 5G1.1(a) (statutory max limits Guidelines) | Bennett: District court treated a Guidelines range above statutory max and anchored its sentence to that miscalculation | Gov't: Argued District Court statements could be read to equate the statutory max with the Guidelines | Court: Plain error—District Court repeatedly treated 135–168 as the Guidelines range and failed to recognize statutory maximum (120 months/10 years) became the guideline under § 5G1.1(a); error affected substantial rights |
| Remedy for sentencing error | Bennett: Remand for resentencing given miscalculation | Gov't: Opposed reversal of the sentence | Court: Vacate and remand for resentencing (did not reach substantive reasonableness) |
Key Cases Cited
- United States v. Dorvee, 616 F.3d 174 (2d Cir. 2010) (§ 5G1.1(a) requires statutory maximum to be treated as the guideline when it is lower than the Guidelines range)
- Molina-Martinez v. United States, 136 S. Ct. 1338 (U.S. 2016) (explains plain-error review when a district court applies an incorrect Guidelines range and the showing needed to affect substantial rights)
- United States v. Maneri, 353 F.3d 165 (2d Cir. 2003) (expectation to receive a thing of value, not a formal agreement, suffices for distribution enhancement)
- United States v. Reingold, 731 F.3d 204 (2d Cir. 2013) (recognizes that file sharing can constitute distribution under § 2G2.2 enhancements)
- United States v. Groce, 784 F.3d 291 (5th Cir. 2015) (concluded that use of P2P file-sharing can inherently imply reciprocal exchange warranting enhancement)
- United States v. Hernandez, 795 F.3d 1159 (9th Cir. 2015) (rejects per se rule; enhancement depends on defendant's specific conduct and expectations)
- Gall v. United States, 552 U.S. 38 (U.S. 2007) (sets procedural and substantive review framework for sentencing)
- United States v. Cavera, 550 F.3d 180 (2d Cir. 2008) (en banc) (articulates abuse-of-discretion standard for sentencing review)