United States v. Donald Eugene Creel, 2015 U.S. App. LEXIS 6517

Creel downloaded child pornography via a peer-to-peer file‑sharing program; police later downloaded images from his computer and indicted him for receipt/distribution and possession, and he pleaded guilty to receipt/distribution.
The presentence report applied a two‑level enhancement under U.S.S.G. § 2G2.2(b)(3)(F) for “[d]istribution” of child pornography, raising his Guidelines range.
Creel objected, arguing the distribution enhancement requires knowledge that files on his machine were accessible to others and there was no evidence he had that knowledge.
The probation officer and an ICE agent testified the record and interview indicated Creel understood and used the file‑sharing program; the district court credited that testimony and applied the enhancement, then sentenced Creel to 84 months after a downward variance.
The Eleventh Circuit reviewed factual findings for clear error and the legal application de novo, and considered whether the Guidelines’ commentary defines “distribution” to include a mens rea requirement.

Issue	Creel's Argument	Government's Argument	Held
Whether the Guidelines’ definition of “distribution” under U.S.S.G. § 2G2.2(b)(3)(F) requires knowledge that files were accessible to others	Creel: Enhancement requires that he knew files were accessible to others	Government: Commentary definition requires only an act related to transfer; no scienter element	The court held the commentary does not impose a mens rea requirement; knowledge is not required
If scienter is required, whether the district court clearly erred in finding Creel knew files were accessible	Creel: No evidence he knew others could access files	Government: Record and interview show Creel understood file sharing; district court credibility findings supported enhancement	Alternatively held: even if knowledge required, district court did not clearly err in finding Creel knew

United States v. Smith, 775 F.3d 1262 (11th Cir. 2014) (interpretation of Guidelines’ plain language and commentary)
United States v. Baker, 742 F.3d 618 (5th Cir. 2014) (commentary does not contain a scienter requirement)
United States v. Ray, 704 F.3d 1307 (10th Cir. 2013) (construing commentary broadly; scienter not required)
United States v. Baldwin, 743 F.3d 357 (2d Cir. 2014) (holding defendants must know file‑sharing makes files accessible)
United States v. Layton, 564 F.3d 330 (4th Cir. 2009) (similar holding requiring knowledge)
United States v. Robinson, 714 F.3d 466 (7th Cir. 2013) (same rule on file sharing scienter)
United States v. Dodd, 598 F.3d 449 (8th Cir. 2010) (presumption that file‑sharing users knew they distributed)
Fedorenko v. United States, 449 U.S. 490 (1981) (canon that deliberate omission of a word implies it was not intended)