United States v. Ray
2013 U.S. App. LEXIS 2439
| 10th Cir. | 2013Background
- Tip from Michigan authorities led ICE to execute a search warrant at Ray's Kingman, Kansas home in Nov 2010 for suspected molestation and possession of child pornography.
- Two computers were found: a desktop Ray owned with deleted child-pornography files and an activated peer-to-peer program (Shareaza) used to search/download such material.
- Ray admitted familiarity with computing and that he used Shareaza to search for child pornography, claiming the files were deleted because they were “sick.”
- Forensic analysis found 2,430 images on the desktop and 34 images plus a movie on a laptop borrowed by Ray; the share setting on Shareaza was enabled and timestamps aligned with Ray’s admitted use.
- In Aug 2011 Ray pled guilty to knowing receipt of child pornography (18 U.S.C. § 2252(a)(2)); the indictment charged distribution but he pled to receipt only.
- The presentence report calculated base level 22 with multiple enhancements including (b)(2), (b)(4), (b)(6), (b)(7)(D), and (b)(3)(F); total offense level 34, Criminal History I, yielding 151–188 month guideline range; Ray objected to the distribution enhancement.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 2G2.2(b)(3)(F) requires knowledge of distribution capability | U.S. argues distribution broadens with any act related to transfer | Ray contends knowledge of distribution capability is required | Distribution enhancement does not require knowledge of capability |
| Whether due process/Apprendi concerns apply to the enhancement | Government relies on advisory Guidelines; no right to jury for standard enhancements | Ray asserts Apprendi-style jury findings are required | Enhancement valid under advisory Guidelines; no Apprendi violation |
| Whether 3553(a) factors were properly considered and whether childhood abuse and deletion of files were appropriately weighed | Court properly weighed factors; deference to Guidelines appropriate | Court erred by not crediting abuse history and deletion as reforms | Court did not abuse discretion; considered §3553(a) factors and personal history appropriately |
| Whether sentence is substantively reasonable given below-guideline result | Government argues discretionary variance supported by factors | Sentence too lenient compared to guideline range | 102-month sentence presumed reasonable as below-guideline punishment |
Key Cases Cited
- United States v. Ramos, 2012 WL 3642432 (10th Cir. 2012) (guideline distribution need not prove actual transfer where program access is known)
- United States v. Saavedra, 523 F.3d 1287 (10th Cir. 2008) (no implied scienter for most sentencing enhancements)
- Nava-Sotelo v. United States, 354 F.3d 1202 (10th Cir. 2003) (sentencing factors not treated as elements; no implicit mens rea for enhancements)
- United States v. Olsen, 519 F.3d 1096 (10th Cir. 2008) (due process considerations for substantial sentencing enhancements)
- Saavedra (second cite), 523 F.3d 1289 (10th Cir. 2008) (distinguishing between sentencing factors and elements)
- Gall v. United States, 552 U.S. 38 (U.S. 2007) (guidelines start as the baseline but are advisory)
- Rita v. United States, 551 U.S. 338 (U.S. 2007) (guidelines and statutory sentencing purposes aligned with §3553(a))
- Staples v. United States, 511 U.S. 600 (U.S. 1994) (mens rea absent in many sentencing guidelines)