United States v. Ramos
2012 U.S. App. LEXIS 18158
| 10th Cir. | 2012Background
- Ramos was charged in Kansas with receipt and possession of child pornography under 18 U.S.C. § 2252(a)(2) and § 2252(a)(4)(B); Count Two was dismissed.
- German authorities traced a child-pornography file to Ramos via the Donkey network; ICE then executed a search warrant at Ramos’s home.
- Ramos admitted to using the eMule peer-to-peer program and being the sole user of the home computers; he claimed he attempted to move files out of shared folders, but the government showed the shared folders could be accessed by others.
- PSR set base offense level at 22 with a five-level enhancement under § 2G2.2(b)(3)(B) for distribution, resulting in a higher guideline range before adjustments; district court instead applied § 2G2.2(b)(3)(F) and did not apply the § 2G2.2(b)(1) reduction.
- District court ultimately sentenced Ramos to 87 months, within a range of 70–87 months after sustaining several objections unrelated to the issues on appeal.
- Ramos appeals on (i) whether his use of eMule constituted distribution under § 2G2.2(b), (ii) the constitutionality of the five-year mandatory minimum for receipt under § 2252(b)(1), and (iii) Booker/ Sixth Amendment concerns; the court sua sponte addresses standing on the latter two.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Ramos distributed child pornography under § 2G2.2(b) | Ramos argues no distribution occurred; no affirmative act. | Ramos contends distribution requires affirmative act; eMule’s automatic sharing is not distribution. | Distribution not require intent; using file-sharing to deposit into shared folders constitutes distribution. |
| Standing to challenge § 2252(b)(1) and Booker-based claims | Ramos claims equal-protection and Booker-based challenges to the five-year minimum. | Ramos argues the minimum constrains sentencing and should be reviewed. | Ramos lacks standing; his sentence was not caused by the mandatory minimum. |
| Impact of the mandatory minimum on sentence and nexus to guidelines | The five-year minimum allegedly affects base offense level and sentencing discretion. | Any nexus is speculative; Commission’s base levels stand independently of the statute. | No legally cognizable nexus; the mandatory minimum did not constrain Ramos’s sentence. |
Key Cases Cited
- Shaffer v. United States, 472 F.3d 1219 (10th Cir. 2007) (distribution under § 2252A; owner of self-serve gas station analogy)
- Geiner, 498 F.3d 1104 (10th Cir. 2007) (distribution under § 2G2.2(b)(3); transaction concept)
- United States v. Burgess, 576 F.3d 1078 (10th Cir. 2009) (standards for reviewing guideline calculations; abuse of discretion)
- United States v. Orr, 567 F.3d 610 (10th Cir. 2009) (standards for sentencing enhancements proof by preponderance)
- United States v. Koufos, 666 F.3d 1243 (10th Cir. 2011) (guideline interpretation; commentary controlling)
- United States v. Durham, 618 F.3d 921 (8th Cir. 2010) (broad reading of distribution in § 2G2.2(b)(3); comparison case)
- Allen v. County Court of Ulster County, 442 U.S. 140 (1979) (standing: adjudicable controversies; avoid unnecessary constitutional rulings)
- Scott v. United States, 627 F.3d 702 (8th Cir. 2010) (standing when sentence not affected by mandatory minimum)