United States v. Larry Robinson
2013 U.S. App. LEXIS 7104
7th Cir.2013Background
- Jury convicted the defendant of possessing child pornography and Judge Nosner sentenced him to 108 months with 10 years of supervised release after applying a two-level enhancement for distribution; the enhancement would raise the guideline range but the statutory max for possession was 120 months, so the sentence stayed at the floor of the lower range.
- Two-level enhancement U.S.S.G. § 2G2.2(b)(3)(F) presumes distribution if the defendant, though not charged with distribution, had in fact distributed the pornography he possessed; issue is whether knowledge is required to trigger this enhancement.
- Defendant downloaded files via FrostWire and LimeWire and admitted to downloading but claimed he did not know the files could be viewed by others.
- Govt argued knowledge is not an element of the distribution guideline; court sided with Durham (8th Cir.) that knowledge or reckless awareness is required, rejecting Ray (10th Cir.) without citing Durham, and held strict liability is disfavored.
- Court noted the PSR ambiguity and trial evidence; the FrostWire screens suggested uncertainty about what constitutes a “shared” file; accordingly, the judgment is vacated and remanded for resentencing with a knowledge inquiry.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is knowledge that downloaded files were accessible needed for distribution | Durham: knowledge/ recklessness required | Knowledge not required; strict liability | Knowledge required; plain error remand not yet decided |
| Whether failure to find knowledge was plain error | Error in applying enhancement without knowledge | No objection at sentencing; not plain | Vacate and remand for knowledge finding |
| Does the evidence show the defendant knew files were shareable | PSR and demonstration evidence support knowledge | Evidence ambiguous; defendant barely computer literate | Evidence insufficient; remand for further proof on knowledge |
Key Cases Cited
- United States v. Durham, 618 F.3d 921 (8th Cir. 2010) (distribution knowledge requirement for child-pornography guideline)
- United States v. Ray, 704 F.3d 1307 (10th Cir. 2013) (rejects knowledge requirement in distribution guideline)
- United States v. Laraneta, 700 F.3d 983 (7th Cir. 2012) (distinction in culpability for distributing online)
- Cheek v. United States, 498 U.S. 192 (U.S. 1991) (knowledge of criminal law exceptions)
- Lambert v. California, 355 U.S. 225 (U.S. 1957) (requirement of notice for mens rea)