United States v. Franklin, 2015 U.S. App. LEXIS 7764

Background

Defendant Richard Franklin operated a GigaTribe account and shared preview images of child pornography with 108 approved "friends."
He was convicted on five federal counts relating to child pornography, including one count under 18 U.S.C. § 2251(d)(1)(A) for "advertisement or notice" of child pornography.
Sentencing guidelines produced a life-range recommendation; the district court imposed five consecutive terms (30, 20, 20, 20, 10 years) totaling 100 years.
On appeal Franklin challenged (1) sufficiency of evidence for the § 2251(d)(1)(A) advertisement/notice conviction, (2) substantive reasonableness of the 100-year aggregate sentence, and (3) the district court’s use of judge-found facts to apply guideline enhancements (Sixth Amendment/plain-error review).
The Tenth Circuit reviewed statutory interpretation de novo and sentencing for substantive reasonableness under an abuse-of-discretion standard (with a presumption of reasonableness for within-Guidelines sentences).

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Sufficiency: §2251(d)(1) "advertisement or notice"	Franklin: statute limited to impersonal, indiscriminate communications to the public; closed GigaTribe "friends" list is not public.	Government: posting previews to 108 like-minded subscribers constituted advertisement/notice to a subset of the public.	Court: Affirmed; dictionary meanings and precedent allow "advertisement/notice" to reach targeted groups within a closed network.
Substantive reasonableness of 100-year sentence	Franklin: 100 years is disproportionately harsh and effectively unprecedented; guideline (2G2.2) overbroad/unsupported.	Government/District Court: sentence within guideline range; court considered offense seriousness and need for incapacitation; presumption of reasonableness applies.	Court: Affirmed; within-guidelines sentence not arbitrary or manifestly unreasonable.
Challenge to guideline empirical basis / presumption	Franklin: 2G2.2 lacks empirical basis and is overly harsh, so presumption of reasonableness should be weakened.	Government: presumption applies regardless of empirical criticisms; precedent rejects carving out exceptions.	Court: Rejected challenge; applied presumption of reasonableness to the within-Guidelines sentence.
Six Amendment / judge-found facts for enhancements	Franklin: district judge made factual findings (images count, pattern/for-value distribution, etc.) that increased offense level; these should have been submitted to a jury.	Government: plain-error standard applies; prior circuit precedent rejects the claim.	Court: Rejected under plain-error review, citing prior Tenth Circuit authority upholding judge-found facts in this context.

Key Cases Cited

United States v. Hoyle, 697 F.3d 1158 (10th Cir. 2012) (standard for sufficiency review)
United States v. Phelps, 17 F.3d 1334 (10th Cir. 1994) (de novo review of statutory interpretation)
United States v. Roberts, 88 F.3d 872 (10th Cir. 1996) (use of dictionary in statutory interpretation)
United States v. Meacham, 115 F.3d 1488 (10th Cir. 1997) (statutory interpretation precedents)
Graham Cnty. Soil & Water Conservation Dist. v. United States, 559 U.S. 280 (2010) (limits on noscitur a sociis when word lists are short)
United States v. Wayerski, 624 F.3d 1342 (11th Cir. 2010) (applying child-pornography statutes to limited/encrypted networks)
United States v. Rowe, 414 F.3d 271 (2d Cir. 2005) (applying statute to chat-room postings)
United States v. Grigsby, 749 F.3d 908 (10th Cir. 2014) (presumption of reasonableness for Guidelines despite empirical challenges)
United States v. Miller, 665 F.3d 114 (5th Cir. 2011) (treatment of 2G2.2 and empirical criticisms)
Gall v. United States, 552 U.S. 38 (2007) (reasonableness review and sentencing considerations)
United States v. Redcorn, 528 F.3d 727 (10th Cir. 2008) (rejecting Sixth Amendment challenge to judge-found facts under plain-error review)