United States v. Durham

minimum, mandatory twice the sentence is “justify America, an ex-

a district court need UNITED STATES of traordinary extraordinary variance an Plaintiff-Appellee, with justification” equally compelling as “this or reasoning longer good is no law line of Supreme

after the Court’s decision Gall DURHAM, Michael Shane ” 919, Clay, .... States v. United Defendant-Appellant. (8th Cir.2009). Gall, 933-34 the “Court expressly rejected any ‘appellate rule that No. 09-2951. requires ‘extraordinary’ circumstances to Appeals, United States Court of

justify a sentence outside the Guidelines ” Eighth Circuit. Gall, range.’ (quoting Id. 594-95). S.Ct. 13, April Submitted: 2010. considering totality After “the 26, Aug. Filed: circumstances, including the extent of the range variance from the Guidelines and to

giving due deference the district court’s 3553(a) factors,

decision on the

whole, variance,” justify the extent of the

we conclude that the district court did not sentencing

abuse its discretion in Town- imprisonment

send to 120 months’ and concluding

that “no basis [exists] substantively

sentence is unreasonable.” (internal

Hill, quotations, 552 F.3d at 693 omitted).

alterations, and citations

III. Conclusion

Accordingly, judgment we affirm the

the district court. paragraph conspiracy Then you parole there’s a tence. And were on when this count, witness, and, conspiracy tamper particular therefore, to offense was committed Judge is the case before Holmes there's two-level increase. And February and it shows that on there was one-level increase if the 2/11—that's defen- 11, '09, you pled guilty conspiracy point to a dant —one is added if the defendant witness, tamper with a advised that years I'm committed the offense than less two

you July were imprisonment. sentenced on '09 to 37 after his release from 29, '08, offense, by Judge particular you months Holmes. On June And this were re- 3, 2005, battery charge imprisonment May there was a domestic leased from 13, 2006, you pled you July no contest and had one and the offense occurred on year jail. goes compute up Then it on to that would add so but I've also your history you've criminal score and added two indicated that since been sentenced time, points present if the defendant history committed the of- at this the criminal justice points fense while under criminal sen- would be 20. Pitts, AFPD,

Angela argued, Lorene AR, Fayetteville, appellant. for Jenner, AUSA, Kyra argued, E. Fort Smith, AR, appellee. BYE, BEAM, GRUENDER,

Before Judges. Circuit BYE, Judge. Circuit appeals Michael Durham the sentence of imprisonment 151 months’ he received pleading from the district court after guilty knowingly receiving pornog- raphy violation 18 U.S.C. 2252(a)(2). § Durham contends the dis- by applying trict court erred a two-level distributing pornog- enhancement for raphy pursuant to United States Sentenc- (U.S.S.G.) Manual Guidelines 2G2.2(b)(3)(F). cer- challenges Springdale, they He also dence subsequent- supervised tain conditions of release im- ly obtained a warrant to search the com- posed by the district court. We affirm puter. After the officers executed the in part part. and reverse residence, search warrant at Durham’s using admitted to Limewire to download I music and child pornography files. Barri- Durham in an charged Michael os testified Durham’s default Limewire with, eight-count among indictment other settings changed had been to save and counts, knowingly receiving pornog- child share files from different folders than transported through raphy interstate com- automatically would have been by set by computer merce in violation of 18 program. Barrios believed this indicated 2252(a)(2). § plea U.S.C. Pursuant to a by an action Durham change to these set- agreement, pleaded Durham guilty to tings, despite the multiple users on Dur- remaining Count I and the seven counts family computer. ham’s at sentencing. were dismissed Barrios also testified that files down- Investigation Report The Presentence (“PSR”) loaded Durham were available for oth- placed Durham Criminal Histo- ry I to Category Limewire, and recommended a base ers download through as offense level of 22. The PSR also recom- by logs showing demonstrated the avail- enhancements, including mended several files able obtained Parks in his investi- two-level distributing enhancement However, gation. upon executing the pornography pursuant child to U.S.S.G. warrant, search the officers discovered no 2G2.2(b)(3)(F), object- to which Durham child pornography files contained Dur- ed. The enhancements in a resulted total ham’s shared folder. Barrios indicated the applying offense level of after a three- files would have been in the shared folder level reduction for acceptance responsi- at the time Parks conducted investiga- his bility. tion because Parks was able to view the sentencing hearing, At the govern- file names available for download before Barrios, ment A1 called Detective a foren- they were removed. On cross-examina- sic examiner with the Springdale Police tion, only Barrios conceded the proof avail- Department, testify regarding the con- able demonstrated pornography files computer. tents Durham’s seized Bar- were upload, made available for but there rios described how Detective Mike Parks any was no evidence of actually being files with the Fayetteville Police Department uploaded from computer. Durham’s initially found Durham’s IP address offer- Following testimony, Barrios’s ing participate in the distribution of presented brother, Limewire, testimony from files on Ca- peer-to-peer sey file-sharing program. Casey In his Durham. indicated he installed investigation, actually Parks did down- Limewire on computer Durham’s with load of the files associated with Dur- daughter and showed her how to address, ham’s IP but he believed the file program use the to download music. Ca- names were consistent with child pornog- sey also testified Durham was not present raphy. installed, when Limewire was nor was he knowledgeable program. about the Ac-

The officers determined the cording Casey, up program associated with the IP he set address Parks’s investigation was located at Durham’s resi- according settings, to the default

automatically imposition conditions, oth- enables these as well as er Limewire users. its of the distribution enhance- ment. hearing parties’ proffered tes- After

timony arguments, the district court II posses-

concluded there was no evidence of distribute, sion with intent to held “We review the district court’s sentenc- the distribution enhancement nonetheless discretion, an decision for abuse of applied due to Durham’s use of Limewire. determining our review is limited to testimony, Based on the the court deter- whether the sentence is unreasonable.” “very knowledgeable” mined Durham was United States v. Blankenship, downloading capabilities, about Limewire’s (8th Cir.2009). 703, 704 We first ensure which, turn, lead the court to conclude significant the district court committed no knowledgeable he was also about Lime- error, procedural improperly such as cal- uploading capabilities. wire’s culating range, treating the Guidelines acknowledged

The court mandatory, there was no Guidelines as failing to consid- 3553(a) statement Durham demonstrating factors, § from he selecting er the a sen- materials; knew others could access his facts, tence clearly based on erroneous or however, it found the lack of this direct failing adequately to explain the chosen evidence was not dispositive. Under the Gonzalez, sentence. United States v. 573 preponderance standard, (8th Cir.2009). of the evidence We review the court concluded the two-level enhance- the district court’s ment for applied. distribution novo, Guidelines de findings and its factual objected argued counsel and instead he Blankenship, for clear error. 552 F.3d at should have received a two-level reduction in, distribute, intending not to traffic or A. The pornography

child Distribution Enhancement under U.S.S.G. 2G2.2(b)(l). § response, In the court held Durham first contends the district court provision did apply because Dur- procedural committed by applying error Limewire, ham utilized rather than receiv- two-level enhancement for distribution of pornography through child another child pornography pursuant to U.S.S.G. program that did not feature automatic 2G2.2(b)(3)(F), § alternatively file-sharing. imposed should have a two-level reduction 2G2.2(b)(l). Based on the ruling, applica- § court’s under prior Unlike cases range ble court, Guidelines was 151-188 months. considered this Durham asserts ultimately The court imposed a provided sentence of he no evincing admission his imprisonment 151 months’ years knowledge and 10 distributing he was child supervised release. It then imposed seven pornography file-sharing over the network. special supervised release, fact, conditions of argues, he there was no evidence including a condition allowing proba- demonstrating any uploads actual from his tion office to track Durham’s whereabouts to warrant the distribution en- through any hancement; means the office ac- only deems evidence showed a ceptable, a placing condition on listing limitations of his downloaded files was avail- access, Durham’s internet and a condition point able one for others to access via limiting Limewire, Durham’s contact with minors. notwithstanding the fact that no only objected Durham’s counsel to pornography was discovered tracking appeals condition. He upon the court’s shared folder execution search itself, phy The use of Limewire in and knew other users of warrant. the file- automatically sharing program enables could download files him, installation, provide a upon appropriately does not suffi- from sentenced enhance- on the five-level “thing cient basis for distribution based of value” ment, according par- to Durham. This is enhancement. Id. at 1013. ease, claims, where

ticularly true Griffin, After other circuits that had not explicitly the district court found no evi- yet similarly addressed the issue conclud distribute, advertise, dence of his intent ed the use of a file-sharing program to transport pornography. or download child was a suffi 2G2.2, Application impose Under note cient basis to a distribution en “distribution” is defined as follows: hancement under the Guidelines. United v. Layton, States act, including

“Distribution” means Cir.2009) (“We Seventh, concur with the distribute, possession with intent Eighth, and Eleventh Circuits and hold transmission, production, advertise- peer-to-peer that use of a file-sharing pro ment, transportation, related to the gram constitutes pur ‘distribution’ for the involving transfer of material the sexu- 2G2.2(b)(3)(F).”). poses § of U.S.S.G. a exploitation Accordingly, al of minor. However, the Tenth expressly Circuit disa posting distribution includes material greed with in United States v. involving exploitation the sexual of a Griffin Geiner, (10th 1104, 498 F.3d 1111 Cir. public viewing minor on a website for 2007). the but does not include mere solicita- by a tion of such material defendant. Geiner, interpreted In the court Griffin automatically apply a 2G2.2(b)(3)(F) distribution en- § U.S.S.G. cmt. n. 1. hancement whenever a defendant obtains discussing Before whether the district pornography through child a file-sharing properly applied court en- distribution program. Id. This interpretation broad of matter, begin hancement in the instant the distribution enhancement based mere- pertinent with a review of our cases exam- ly on a defendant’s installation of a file- ining application of such enhance- sharing ignores language network of in In peer-to-peer ments network eases. 2G2.2(b)(3)(B), Geiner, § according to Griffin, States v. 482 F.3d United applies only an enhancement when (8th Cir.2007), this court first consid- the defendant child pornogra- distributes expectation receipt ered whether the phy receipt, expectation or of re- pornography through file-sharing child a ceipt, of other files on the network. Id. value, a program “thing constituted inquiry question Geiner noted the was “a pecuniary gain” pursuant sep- not for to a properly case-by-case of fact resolved aon arate five-level distribution enhancement sentencing basis court.” Id. De- 2G2.2(b)(2)(B). § provided under U.S.S.G. spite disagreement Griffin, its with Geiner bartering por- held such of child Griffin upheld application of the enhancement nography file-sharing over a network was because the defendant nevertheless ex- “thing sufficient to meet the of value” en- value,” pected “thing to receive a in the hancement because “these networks exist- downloading form of faster in speeds re- ‘file-sharing’ suggests as the name —for sharing turn for his of files over the net- share, barter, swap, users to or trade files Id. work. between one another.” Id. 1012-13. Stults, Accordingly, Griffin, in the defendant who United States v. (8th Cir.2009), pornogra-

admitted he downloaded child this court noted Geiner recently, Estey, in More United States to automati- incorrectly interpreted Griffin (8th Cir.2010), a enhancement cally apply distribution a file-shar- a impose utilizes relied on two-level a defendant whenever Griffin pornogra- under U.S.S.G. ing program to download enhancement distribution holding 2G2.2(b)(3)(F), recognized “[o]ur phy. § Stults rather than five-level our con- inseparable ... was from un- provided value” enhancement “thing of Griffin met its bur- government that ‘the 2G2.2(b)(3)(B). clusion noted the de- Estey § der ex- that the defendant establishing den of pornography of child fendant’s distribution ... ‘thing of value’ pected to receive file-sharing program “could have via introducing the defendant’s admissions.” under either of amounted to distribution Griffin, The defendant Id. at 848-49. 2G2.2(b)(3),” subparts of U.S.S.G. these he down- acknowledged, admitted Stults attempt to distin- and thus the defendant’s knew loaded on that guish his case from basis Griffin files from him. Id. others could download unim- unavailing. Id. The court was concluded, result, Stults at 849. As suggestion pressed with the defendant’s for the five- qualifies a defendant “whether inadvertently images with that he shared on a enhancement must be decided level users, other because “like the basis, government case-by-case and [United defendants both Griffin pro[of].” Id. bearing the burden of While Sewell, States v. 457 F.3d 841 Cir. from the there was no direct admission 2006)], Estey an internet knowingly placed Stults, defendant in the court nevertheless on his peer-to-peer file-sharing program of the enhancement upheld computer, program operat- knew how the evidence demon- because circumstantial ed, images and shared with other network technically was so- strated the defendant at court noted other users.” Id. 844. The in use and under- phisticated to the defendant’s users were able retrieve worked, and thus he stood how Limewire Estey pornog- child images “because had distributing pornogra- child knew he was file-sharing in his folder when the raphy program. of the Id. phy through his use were discovered law enforce- images Ultsch, v. In United States addition, similar ment authorities.” Id. (8th Cir.2009), again 829-30 this court rec- Geiner, in to the defendant defendant call for automatic ognized did not “Griffin placed images in his admitted he shared application of the enhancement ‘based him images folder to enable to download merely on a installation of file- defendant’s faster. Id. software,’ sharing as the Tenth Circuit case, In another recent United States v. Instead, re- may suggested.” have Ultsch Dodd, (8th Cir.2010), F.3d 449 affirmed that of a distribution significantly analysis ap- court altered enhancement must be decided on a case- en- plied pornography to child distribution basis, by-case government with the bear- in cases. The de- hancements at ing proof. the burden of Id. 830. The fendant in Dodd asserted he lacked applied the five- properly district court pornography intent to af- distribute enhancement, according level distribution comput- ter he downloaded the files to his Ultsch, to the court because defen- er, despite investigator the fact that an “relatively sophisticated user” dant was pornogra- and downloaded child accessed “large who had downloaded a of Limewire at phy computer. stored on his Id. 451. used terms indic- quantity of material” and presented any evidence on knowledge sharing capa- Neither side ative of his sentencing issue at and the the distribution bilities. Id. ultimately applied court the two- mere district solicitation such material by a 2G2.2(b)(3)(F). § level enhancement under Dodd, defendant.” According Id. Id. definitions confirm that “[t]hese distribu- tion as defined 2G2.2 operat- includes appeal, On Dodd affirmed the district sharing a file program that enables court’s two-level enhancement under Grif- other participating users to access and First, acknowledged Id. Dodd fin. folder, placed download files in a shared inquiry.” matter was a “fact-intensive and then placing files court, According Id. while one that folder.” Id. 452-53. hypothesize could that a defendant had no knowledge of his of child distribution Finally, in this court’s most recent case pornography files via the file-sharing pro- issue, to date on the United States gram, “the purpose sharing pro- file Bastian, (8th Cir.2010), 603 F.3d 460 share, words, gram is in other to dis- again rejected attempt defendant’s result, tribute.” Id. at 452. As a Dodd to avoid the five-level distribution enhance a new imposed whereby standard the ment. Bastían noted government file-sharing defendant must show “con- discharge could its burden of proving the crete ignorance evidence —evidence evidence, enhancement through direct such ignorance is needed because is en- admission, as the defendant’s or by indi tirely counterintuitive.” Id. Without such evidence, rect “such as the defendant’s evidence, concluded, Dodd “a fact-finder technical sophistication in computers, in may reasonably infer that the defendant ferring that he knew that by using a file- employed knowingly sharing pro- a file network, sharing he could download files gram for purpose.” its intended Id. De- from others who could also access his spite requirement the new placed upon Bastían, files.” Id. at 466. In the defen defendant, the court reaffirmed the dant used Limewire to download child por government retains prove the burden to nography, but he never admitted he knew case-by-case enhancement on a basis. he sharing others, files with nor was Id. 452 n. there evidence sophisticated he was a user holding

Dodd noted its Limewire, was consistent according to the defendant. with the broad However, definition of “distribution” Id. the court never analyzed the § encompassed within 2G2.2. Id. at 452. application of the enhancement on these recognized The court Sentencing Com- facts any because it concluded error was mission’s recent clarification that “distribu- harmless due to the fact that the defen posting tion includes involving material dant’s offense level would not have been exploitation sexual aof minor on a website affected even absent the enhancement.1 public viewing but does not include the Id. issue, Although the court never reached "probably Ultsch sufficiently have not nar- Judge separate Colloton wrote a concurrence rowed language some of and reason- Griffin’s discussing government’s position ing.” Judge that the Id. Colloton concluded the sim- applies ple five-level enhancement aif defendant file-sharing program, use of a file-sharing program comput- installs a knowledge operation, on his of its was a "tenuous er, program knows the allows urge distribution of basis on which to files, 2G2.2(b)(3)” and images distributes and receives because it eliminates the need through program. use of the Id. at 467. for a "transaction.” Id. at 468. In other Judge words, position may Colloton noted this file-sharing program find "[i]f allows the support Griffin, some in but the recent at- user to download child from tempts "clarify” computers, Stults other whether or not the user Griffin added). case, Griffin,

Turning (emphasis to the facts this See also (noting Durham asserts there are several distinc F.3d 1010-11 the defendant’s from the cases discussed above. shared folder had been deleted from the tions First, Griffin, government computer upon unlike con execution of the search warrant). Dur investigation cedes it has no direct evidence of Parks’s uncovered way knowledge suggestive por- of distribution files with names of child ham’s Durham’s Durham on any part. nography admission on available Durham’s Limewire, knowledge through require- maintains he had no that other and thus this possibly Limewire users could obtain files ment was satisfied. Likewise, computer. from his he made no lack While the of direct evidence or ac- like the defendants in admissions Geiner novel, uploads tual does not make case Estey placing images in his shared distinguishing present other facts a closer

folder order to enable faster download First, question. typical unlike the situa- ing capability Despite over the network. tion exemplified Estey, pre- evidence any the lack of admissions Durham’s sented at sentencing shows Durham was part, our govern case law is clear responsible for the installation of Li- may through ment meet its burden indi mewire on computer. Estey, his rect evidence. Id. (“Estey knowingly placed an inter- argues also the instant matter net peer-to-peer file-sharing program on distinguishable computer, from Dodd and his program op- knew how the Griffin erated, any because there no evidence of actu- images and shared with other net- distribution, users.”) added). al uploads, por- Barrios, i.e. of child work (emphasis nography witness, from Bar- computer. government’s only Durham’s conceded testimony Limewire, rios confirmed that no he did not know who installed evidence existed to show Limewire and the subsequently presented defense actually brother, users had ever por- testimony obtained child from Casey, Durham’s nography from computer; regarding the latter’s installation and set- only point evidence showed at one the files up program. Casey indicated he suggestive pornogra- with names of child installed daugh- Limewire with Durham’s phy Further, were available for download. ter in order for her to download music. Estey, upon unlike execution of the search According Casey, configured Lime- warrant, the officers discovered no child according settings, wire to the default pornography files in automatically Durham’s shared fold- which enabled er. with other users.

Although Second, agree with Durham that importantly, and more there is case, these distinguish facts this neither of little evidence to show Durham how knew these facts operate alone is determinative because program. Casey testified inquires our case law “absolutely” whether the defen- he was knowledgeable more dant’s of peer-to-peer file-sharing “use than Durham general computer about network made the child pornography knowledge, Casey files and even indicated he bit, in his shared folder available to be a little ... everything, “[knew] but searched and downloaded Casey [file- other for sure.” further testified he told sharing] Estey, users.” 595 at 843 Durham he installed Limewire on the fam- images par- unnecessary receipt

makes his own ties, available to other because it is to the of a gratuitous. thing orig- then the user's (emphasis distribution is of value." Id. at 467 value, inal). thing receipt It is not of a of

929 ily computer, plication enhancement, but Durham “wasn’t real of the distribution Casey speculated how to use it.” as it concluded Durham “very sure was knowl daughter might edgeable” have showed about capabilities. Limewire’s program, “[p]roba- conclusion, him are troubled how use We this howev er, bly daugh- not in detail like I showed it appears contradictory [his because to be to the evidence in only ter].” the record.2 The testimony at knowledge directed Durham’s facts foregoing illustrate substan file-sharing programs of provided by prior tial distinction from our cases. The Casey, his brother explicitly who stated of primary provid means indirect evidence Durham “wasn’t real sure how to use [the in our cases has the defen prior ed been file-sharing program].”3 While there is with the sophistication file-sharing dant’s knowledge direct evidence of Durham’s of program. sophistication provides Such an Limewire, downloading files via there is “by inference that the defendant knew us no such evidence of knowledge up his of network, ing could down loading, files, i.e. distributing over the pro load files from others who could also ac gram, which is a critical distinction Bastían, cess his files.” 603 F.3d at 466. case. Accordingly, upheld ap this court has Instead, plication distribution enhancements the district court appeared to on a file-sharing sophist justify based defendant’s its conclusion premises. on two First, ication on Estey, apparently numerous occasions. See the court accepted the (“[L]ike F.3d at in government’s argument defendants that a shortcut to Sewell, Estey both ... knew Durham’s shared folder on his Windows Griffin [file-sharing] program operated”); desktop how the demonstrated knowledge (“The Ultsch, at file-sharing programs. defendant The argument was relatively sophisticated Barrios, was a user of on testimony [Li based elicited from Stults, (“The mewire]”); who stated a shortcut on Durham’s desk- Stults, reasonably top district deemed was created after the installation of technically sophisticated comput who is directly Limewire to allow Durham to ac- use, knowing er that he was distribut containing cess his shared folder files pornography through his use of downloaded from Limewire. LimeWire.”). was, testimony note We Barrios’s

Here, analysis best, equivocal the district court’s evoked toas whether he examined familiar sophistication ap- settings basis for its for the other users on the “ample ceipt pornography, 2. The dissent states there is evidence” a fact he does not support finding that Durham knew how dispute. The evidence as to Durham’s knowl- Limewire worked. In addition to Barrios’s distribution, edge depth as discussed in below, testimony, which is discussed the dis- below, demonstrates otherwise. points establishing sent to facts in the PSR (1) police identified 59 child recognize We the district court was entitled files on a traced back to Durham’s Casey’s testimony to discredit as it saw fit. home, (2) police nearly found 50 videos and Johnson, See United States v. images containing por- more than 400 child (8th Cir.2010) ("A district court’s assess- (3) nography computer, on Durham's Dur- credibility virtually ment of witness is unre- videos, searching ham admitted to for illicit However, appeal.”). viewable on there is no (4) pornography and all was that indication whatsoever the district court password-protected stored under Durham's Casey's testimony deemed unreliable or not profile. merely Each of these facts establish credible. downloading evidence of Durham’s and re- alleged and he did not know if the his distribution limit computer, thus because was settings profiles on their matched the set ed to files he through downloaded Lime- tings profile. impor on Durham’s More result, reject wire. As a govern tantly, argument, govern like the argument provides ment’s that a shortcut ment’s focus on Durham’s search terms evidence of distribution.6 pornography, largely is a red herr second, more substantial basis than ing.4 being Rather indicia of distri upon by relied the district court was its bution, government urges, as the the fact very assessment of the nature of Limewire might that Durham have created a short began analysis itself. The district court its cut plausibly to his shared folder more by stating the following: receipt demonstrates indicia of his of child any I haven’t pornography-a dispute.5 fact not in heard evidence that would way a file-sharing program persuade pos- same exists for me that the defendant files, Dodd, purpose sharing see sessed intent to distribute or adver- exists, shortcut as its name transport, tise or but I think that there suggests, to allow a to quickly access user is evidence to that indicate this material files in a specified folder fewer “mouse- posted was placed because it was on a keystrokes. clicks” or The fact Durham program, Limewire the [single], per- may quicker have desired access to his haps only purpose of which is to do that downloaded materials via a shortcut very thing, post permit it to it to be knowledge Windows does establish his by any might shared and all who choose that simultaneously those materials were to access that site. capable being uploaded to other users proceeded The court equate Dur- program, on a software as the shortcut knowledge ham’s of downloading files with functionality maintains no up related to knowledge uploading files over Li-

loading files on a program. mewire: Perhaps may such shortcut indicate evi Now, based on that and testimony dence of if distribution the defendant di here, that I have heard it rectly would seem to loaded child into the me that the defendant computer, very shared folder on his was knowl- and then proceeded upload edgeable that program those files over a file- Limewire network; sharing sugges permit there is no would him to access and down- engaged any tion Durham activity chose, such porn load child as and when he argument, government 4. At oral suggested points 6. The also dissent to Barrios’s testimo ny knowledgeable "barely possible” Durham was it was about Lime- files could be shared on Limewire without capabilities wire's because he searched for knowledge period user’s after a of time. After terms like "kid sex” and "teen sex.” These court, however, inquiry by further the district terms, search while indicative of Durham’s multiple Barrios confirmed times that "[i]t's pornography, desire to download child fail to possible” for someone to install Limewire any establish evidence of distribution. materials, only knowing to receive without others could also receive materials from government places 5. The emphasis also much them, setting. which occurs under the default profile on the fact Durham's Windows Casey The record demonstrates installed Li matter, password-protected. practical As a precisely purpose mewire for that Dur —for password-protection negat- effect of the daughter ham's to download music. While Casey clearly ed the record because testi- Casey understood others could obtain files fied daughter, among both he and Durham's according settings, from him to the default others, password. knew Durham's never told Durham of this fact. getting any permission from Perhaps place without no in the record is the anybody, but that that feature would district application court’s automatic permit him to do that. [It strains credu- distribution enhancement telling more not, lity] by that to reason he would that than objected after Durham to its final knowledge, understand it’s a two- Guidelines calculation. After Durham street, that, way that if he could do it’s moved for a two-level pursuant reduction quite likely that others could as well. 2G2.2(b)(l), §to the court denied the mo- tion by stating the following: above, in depth As discussed we have government continued reaffirm upon Based my ruling and what I’ve retains the of proving burden distribution heard, his conduct was not limited to Dodd, enhancements. 598 F.3d at 452 n. [receipt] because it posted was on the Moreover, explicitly rejected 2. we have it, Limewire. He could have received it any suggestion automatically apply a me, seems to or solicited it without uti- merely distribution enhancement based lizing program a which featured auto- a a file-sharing pro- defendant’s use of file-sharing. matic ISo don’t think he Ultsch, Rather, gram. 578 F.3d at 830. qualifies provision. for that So I’ll deny the enhancement must be decided on a your motion for that reason. case-by-case depending basis on the facts These comments establish the court’s auto at hand. Id. matic application of the enhancement be The district court’s foregoing comments explicitly cause it concluded Durham could demonstrate it violated this well-estab- have avoided the enhancement had he not principle lished of our case law auto- used a file-sharing program. Rather than matically applying the en- distribution deciding the merits of the enhancement on hancement based on Durham’s of use an individualized facts, basis under the file-sharing program. explicitly The court automatically imposed the enhance concluded Durham had no intent to dis- ment because Durham used a file-sharing tribute, but it determined the enhance- program, contrary to our precedent.7 ment proper solely because he utilized The district court’s automatic file-sharing program, which exists of the enhancement is purpose sharing files further between users. demonstrat ed pronouncement While this court this court’s recent agreed purpose has programs these Dodd that is to share files unless defendant among presents its Dodd, users, see “concrete ignorance,” 598 F.3d at we have evidence of the fact- consistently prohibited finder ap- may reasonably the automatic infer the defendant plication of distribution enhancements utilized a program to distrib solely based on a defendant’s use of a file- ute files.8 598 452. While we have sharing program. yet had occasion to consider what con- Dorvee, 7. In United States history stances each offense and the (2d Cir.2010), provided the Second Circuit an characteristics of the Id. at defendant. 96-97. interesting discussion appli- on the standard cation of several 2G2.2 enhancements in parties Dodd was filed after the submitted nearly specifi- all cases. While Dorvee did not briefs, prior argument. their to oral enhancements, cally discuss distribution government pursuant submitted a letter enhancements, typical including noted the R.App. urging Fed. P. us to consider here, applied several that to Durham result in Dodd, parties argued import and the varying a concentration of offenders at or argument. the case at oral maximum, statutory near which diminish- importance es the of the nature and circum- discussion, we light foregoing In of our ignorance,” evidence of “concrete stitutes improperly court cal- the district presented conclude the evidence we conclude range by ap- Durham’s Guidelines culated this standard.9 Durham meets enhance- plying a two-level distribution First, distinguishable is this matter 2G2.2(b)(3)(F). § reverse ment under We because, case, in that neither from Dodd of the en- court’s the district pre- the defendant government nor the for resentenc- and we remand hancement the distribution any evidence on sented may at time the district ing, which sentencing. Id. at 451. enhancement entitled to a whether Durham is consider contrast, in this case By government the under two-level reduction further Barrios on the testimony from presented (“A 2G2.2(b)(l). Stults, objected to the en- investigation. Durham calculating the non-harmless error testimony of his presented hancement requires a remand for guidelines range brother, Casey. knowledge from his lack of resentencing.”). above, Casey indicated he As discussed Supervised Special B. Conditions computer, Limewire on Durham’s installed Release Durham on how to use he did not instruct Durham next contends the district court not knowl program, and Durham was by imposing certain abused its discretion regarding program’s capabili edgeable supervised conditions of release. addition, government special con ties. challenged a condition allows the argument Barrios was not The first ceded at oral witness, probation office to track his whereabouts and it should have called strong necessary. The by any his means it deems testify Detective Parks to regarding Durham investigation. challenged Under second condition bans knowledge of the circumstances, during accessing Durham from these we conclude Finally, he has access. ignor evidence” of his the time internet presented “concrete result, challenged prohibits the strict the last condition ance.10 As a even under standard, accessing Durham from the internet with ap the district court’s er Dodd probation prior approval enhancement out from the off plication of the distribution ice.12 improper.11 (internal sug- appeal.”) quotation argument, on marks and 9. At oral Durham's counsel hand, omitted). gested impermissibly the burden Dodd shifted citation On the other proving from support distribution enhancements bases much of the for its dissent government Barrios, to the defendant. We need testimony a on the conclusion because, here not address this issue argument witness described at oral event, presented Durham “con- conclude "admittedly strong government ... not a as ignorance satisfy crete evidence” of witness.” standard. Dodd again evidence” 11. We note Dodd's "concrete “skeptical 10. The dissent states it is government's supersede the standard did not sibling” opinion the kind of of a defendant's is prove burden to the enhancement on case- in mind. As “concrete evidence” Dodd had govern- by-case n. 2. The basis. Id. at 452 above, absolutely there is no indication stated case, meet its burden in this ment failed to testimony Casey's the district court deemed applied improperly and the district court such a unreliable or not credible. Absent basis due to enhancement on an automatic ap- finding, province our it is not within file-sharing program. Durham’s use of peal make determinations. See Unit- such Johnson, ed States v. brief, ("A challenged Cir.2010) also In his district court’s assessment of special prohibiting unsupervised credibility virtually condition unreviewable witness

933 probation carry the district court’s im office to review out the condition “We of the terms and conditions of it position necessary. if deemed the condition In- stead, an supervised release for abuse of discre points probation out the office v. Jorge-Salgado, tion.” United States general will know his whereabouts because (8th Cir.2008) (citation 840, 520 F.3d 842 registration of his sex offender require- omitted). recognize that the “We district ment, and the court failed to articulate impos court is afforded wide discretion precise tracking how reasonably was relat- ing supervised release conditions.” Id. history characteristics, ed to his by But this discretion is limited the re offense, nature of the any or other factor. volve quirement ably reasonably related to the no any greater deprivation pertinent that the conditions “be reason necessary, policy statements is § 3553(a) factors, and are consistent liberty than in thority probation as the ^[4] “Conditions delegating to non officers are judicial judicial delegating limited au- permissible officials such as officer retains so long and exercises ultimate responsibility.” Sentencing sued United States Mickelson, 1050, United States v. 433 F.3d Id.; v. Commission.” United States Bend (8th Cir.2006). Mickelson, 1056 (8th Cir.2009). er, 751 upheld a similar affording condition Tracking Condition probation office discretion to track the defendant’s whereabouts in a receipt of 2 Dur Special requires Condition child pornography case. Id. at 1056-57. any to utilized ham to “submit means The court noted flexible conditions such as probation office to track his where this can serve a defendant’s interests be- or during abouts location time su they particu- cause can be tailored to meet objected After Durham pervised release.” lar correctional needs. Id. at 1057. The sentencing, the condition at the court recognized court also the district court say noted it did not mean to authority maintained the ultimate over the him, needed a GPS unit attached to or defendant, and therefore there was no means, prob other like because “that some Id.; abuse discretion. but see United ably necessary,” would not be Baird, v. Fed.Appx. States option court noted the was left to the (9th Cir.2008) (vacating a monitoring GPS probation office to decide whether such condition was where record insuffi- necessary. means were ciently developed to allow the court Durham contends the condition involves review whether the condition was neces- greater liberty than is deprivation 3553(a) factors). sary light § of the necessary circum- reasonably under Mickelson, reasonably it relat- In light stances because is not we conclude the 3553(a) promot- ed to the factors such as district court did not its abuse discretion deterrence, protecting public, imposing Special Condition 2. The court advancing imposed his correctional needs. Durham indicated the conditions it were asserts, despite objection designed at sen- Durham if he also assist tencing, explain tempted problems the district court did not to have in the future. why imposing tracking agree government it was condi- We also with the only during pretrial revocation explained tion-it how intended the Durham’s bond Hawk, v. contact with minors. Durham withdrew his before us. See United States Little objection argument, (8th Cir.2006). to this condition at oral n. 2 however, longer and therefore the issue is no Foster, States v. tence controls.” United forgery pro- degree for first supervision (8th Cir.2008) (citation 821, 825 the condition. 514 F.3d support for vides further omitted). light true in also United States particularly See This is Cir.1994) 1035, Durham finding that judge’s Tramp, 30 F.3d magistrate time, (“The which indi- risk at the the sentenc- flight was a pronouncement oral monitoring. court.”). greater for a need judgment cates of the ing court is Moreover, maintains the the district court Here, government with the agree Durham. Under authority over ultimate does not con- judgment the court’s written circumstances, the district court did these pronouncement. flict its oral Under with in imposing Special discretion not abuse its variation, prohibited Durham is either 2. Condition which, child accessing pornography, from concedes, by the prohibited as he is also Ban Pornography 2. Child any mandatory requirement not to commit challenges Special next Condi- Love, Durham v. new offenses. See United States possessing bars him from tion which (D.C.Cir.2010) any (holding asserts the district pornography. He child pro- between the oral minor differences conflicts with pronouncement court’s oral judgment and written did not nouncement the matter judgment, and thus its written remand). reject therefore require We judg- the written must be remanded so regard Special argument to reflect the oral ment can be modified 7. Condition specific The court’s two pronouncement. special of the condition are set

versions on Access 3. Restriction Internet forth below: Finally, challenges Special Durham A seventh added Pronouncement: Oral restricts his internet Condition during the time condition will be that prior from the approval access without access to the the defendant has judg I probation office. concur with internet, any he shall not access site or in Judge court announced ment of the any that are related or view materials separate opinion that the dis Gruender’s porn, or that could deemed to be child judgment trict court’s written conflicts being porn, or be characterized as pronouncement with its earlier oral on illegal. otherwise substantially Special Condition 5 because Judgment: The defendant shall Written placed upon Dur broadens the restriction possess pornography. not access or focusing any ham with inter device mandatory requirement Durham notes the which could be read to ban capabilities, net already offenses to not commit new televi phones, portable players, cell music Special Condi- prohibits either variation sions, myriad and a of other devices. the oral Regardless, tion 7. he asserts and the written pronouncement prevails addition, I believe the internet re- govern- be modified. The judgment must Special pro- striction under Condition acknowledges ment the two conditions do liberty than greater deprivation vides word-for-word, it contends not track necessary, therefore I reasonably and and the writ- discrepancy is innocuous would vacate and remand the district oral ten conditions do not conflict with the of that condition. As a imposition court’s pronouncement. result, judgment I dissent from Judge sep- and the court announced Gruender’s “Where an oral sentence conflict, that the district court did not opinion the oral sen- arate judgment written lengthy history grievous had a sexual plain imposing Special error commit misconduct, there was no evidence he used Condition or internet for anything above, condition tracking Unlike than possession por- more mere of child to the condition at object did not nography. Id. The court was “not con- the condition is sentencing, and therefore that a vinced broad ban from such an plain error. United States reviewed communication, important medium of com- (8th Cir.2005). 1042, 1044 Camp, 410 F.3d merce, information-gathering is neces- if “Plain error occurs the district sary given the absence of evidence demon- law, errs, under current the error is clear strating more of computers serious abuses sub- the error affects the defendant’s addition, In or the Internet.” Id. Crume States v. Krei- rights.” stantial United “impose held the district court could a (8th Cir.2009). 500, 576 F.3d 505 tinger, narrowly-tailored more restriction on [the matter, Durham an initial contends As computer through pro- use a defendant’s] should be relaxed in plain error review accessing categories hibition on certain of of the nature of the this case because websites and Internet content and can suf- context, re- sentencing which would not ficiently compliance ensure his with this trial, merely a for quire a new remand through condition some combination of of condi- resentencing or a modification random searches and software that filters Sofsky, v. 287 F.3d tions. United States objectionable material.” Id. (2d Cir.2002). 122, However, he ac- 125 Eighth rejected knowledges the Circuit Crume, Since this court has continued Ristine, in States v. approach this United analyze whether the defendant used his (8th Cir.2003) 692, in- 335 F.3d 694 and computer merely possess to do more than Be- applied plain stead a error standard. determining child in whether Ristine, I panel our is bound cause upheld. similar conditions should be For apply would decline Durham’s invitation to Bender, example, in United v. States 566 plain a relaxed error standard. United (8th 748, Cir.2009), F.3d 751-52 the court (8th Craddock, 699, 702 States v. 593 a and internet upheld ban .2010) (“Even argument if we found Cir this usage arranged for a defendant who on- persuasive, authority we are without the to line to meet a woman for sexual relations a prior panel overrule the decisions of pursued relationship and with her de- circuit.”) (citation omitted). spite discovering she was a minor. Simi- Alvarez, in assessing challenge Spe- larly, Durham’s United States v. (8th 5, Cir.2007), 864, persuasive cial I find the F.3d this court Condition Crume, analysis justified in concluded an internet court’s United States ban Cir.2005), 422 F.3d which for a defendant who admitted material he all banning reversed a condition internet found online contributed to his sexual usage for a of receiv- contact with a minor. Alvarez defendant convicted distin- that, pornography. guished by noting Crume noted Crume the defendant’s “[although “may interpret- the district court is entrusted statements and actions be special suggest pro- broad discretion to fashion ed to that online material with release, him supervised encouraging, conditions of we are vides actionable ideas.” Stults, sweeping Finally, upheld in this court particularly uphold reluctant Id. important barring restrictions on constitutional condition internet access based rights.” distinguished prior part sophistication Id. on the defendant’s Crume though computers large and his database of cases because even defendant Stults, may district court consider at 856. which time the illicit materials. unlim- Durham is entitled to a further Stults maintained whether The defendant 2G2.2(b)(l). employ- computers for his under ited access to two-level reduction Id. purposes. ment court’s However, we affirm the district 2, which Special Condition imposition facts, I am not con the instant Under to track probation authorizes the office computer or inter Durham used his vinced whereabouts, Special as well as possess than anything other net access for Durham from prohibits Condition pornography.13 “As Crume ing child accessing pornography. illustrate, circuits decisions from other Internet access is diffi complete ban on BEAM, Judge, concurring in Circuit justify a least restrictive means cult to as part dissenting part. statutory objectives of satisfying the in the case of a defen supervised release opinion except I in the court’s concur criminal conduct involved sim dant whose I respect part, Part to that II.B.3. With pornography.” of child ple possession opinion II. join Judge Part Gruender’s Mark, States v. 510 United dissenting part and in an- concurring, (8th Cir.2005). in this I believe the record of the court. nouncing judgment Crume, case, justify to like is not sufficient access and I complete ban on internet GRUENDER, Judge, concurring Circuit plainly the district court would conclude announcing in and part, dissenting part, in by imposing Special Condition 5. erred in judgment part. of the court may appro other alternatives be Whether majority’s agree I with the conclusion filtering programs, as cannot priate, such that the district court did abuse its ascertained from the current record. be in imposing special discretion condition why ap it clear the district court Nor is supervised concerning pro- release regular proba believed Durham’s parently track authority bation office’s inadequate be supervision tion would 2”). I (“Special whereabouts Condition public and deter future con protect Cruute, agree also with the conclusion there is in I am confident the duct. As meaningful no conflict between the district could a more narrow impose district court pronouncement special court’s oral com ly-tailored restriction on Durham’s prohibiting condition from access- compliance puter use ensure his pornography (“Special child Condition the condition. 7”) description of that condition in and the Ill I judgment. agree, the written do not however, majority’s with the conclusion reasons, foregoing For the we conclude improperly applied that the district court calculated improperly the district court under the two-level enhancement U.S.S.G. range by imposing Durham’s Guidelines 2G2.2(b)(3)(F) for distribution of materi- enhancement. We two-level distribution exploitation of a resentencing, involving remand for al the sexual reverse and dangers allegedly government of the internet. Durham 13. The claims Durham used his instance, collecting por- disputed for more than but it was admitted to this allegedly storing pictures nography, including sentencing hearing, and even Barrios at the masturbating. government of himself The testimony in that the incident concluded alleges daughter a Durham showed his also interviewing actually place did not take after picture performing of a woman oral sex on daughter friends. Durham's her about the man in an effort to educate

937 join er, I Accordingly, minor. Parts II.B.1 and then placing child pornography Judge Bye’s majority II.B.2 of partial Dodd, files that folder.” 598 F.3d at opinion, respectfully but I dissent from the 452-53. outcome and rationale set forth Part majority acknowledges pri- that our special II.A. to the restricting As condition or upheld cases have (“Special Durham’s access to the Internet viz., “distribution enhancements” — 5”), opinion Condition announces the two-level enhancement under section

judgment Although of the court. we con- 2G2.2(b)(3)(F) and the five-level enhance- clude that the district court did not commit 2G2.2(b)(3)(B), ment under section plain Special error in imposing Condition requires in exchange distribution for the 5, we remand with instructions to amend receipt or expectation of receipt of a portion the relevant of the written judg- thing of value—based on the defendant’s ment to conform to the district court’s oral having some amount of “sophistication” pronouncement.

about the program he used to I. acquire Ante, pornography. at 929 (citing Estey, United States v. 595 Regarding the distribution enhance- (8th 836, Cir.), denied, ment, 844 dispositive cert. question is whether U.S. -, 3342, clearly the district court 130 S.Ct. finding erred 176 L.Ed.2d 1236 (2010); Ultsch, that Durham pornogra- distributed child United States v. 578 F.3d Dodd, (8th phy. Cir.2009); See United States v. United States v. (8th Cir.2010) (noting Stults, decid- Cir.2009), qualifies denied, whether defendant for the U.S. -, cert. 559 130 S.Ct. — distribution “a enhancement is fact-inten- L.Ed.2d - (2010)). majori- And the inquiry,” applying sive and thus the defer- ty case, notes that this the district court ential “clear error” standard of appellate “evoked the familiar sophistication basis review), denied, -, cert. 561 U.S. 130 ... [applying] the distribution en- —3533, -, S.Ct. L.Ed.2d 2010 WL hancement,” finding that “Durham was (2010); 2191746 see also United States v. ‘very knowledgeable’ about Limewire’s ca- Bates, (8th Cir.2009) Ante, pabilities.” majori- at 930. Yet the (“We review the district interpreta- court’s ty concludes that it improper for the application tion and of the guidelines de district court apply the distribution en- novo factual findings and its for clear er- ante, majori- hancement. See at 932. The Pate, (citing ror.” United States v. 518 ty gives three reasons. Cir.2008))). It bears First, majority says that the district repeating that the relevant application finding court’s about sophistica- note defines “distribution” to include “appears tion contradictory to be to the “posting material involving the sexual ex- Ante, evidence in the record.” at 929. ploitation of a minor aon website for Second, majority says that the district public viewing.” U.S.S.G. 2G2.2 cmt. n. court “violated princi- [a] well-established note, 1. Based on along ple by automatically of our case law ordinary apply- with the meaning applica- of the terms, ing the distribution recently ble enhancement based on held “distribu- tion as defined 2G2.2 Durham’s use of a program.” [section] includes Ante, Third, operating sharing program a file majority says that en- participating ables other distinguishable users to access “this matter is from placed and download files in a shared presented fold- Dodd because ... Durham ‘con- Ante, crete evidence’ of ignorance.” reported tive Barrios that he “uncovered disagree [i.e., 932. I on all counts. evidence that ... child notable files containing suspected files known or de- majority’s first and third reasons pictions of child pornography]” had been I overlap, together. so will discuss them “downloaded with Limewire and ... saved matter, As an initial ample there is evi- folder,” shared but “none [Durham’s] support dence in the record to the district present them were the shared [in folder]” finding court’s that Durham knew how Li- when the was seized. instance, worked. For stipu- meWire plea lated factual basis in the agreement Detective Barrios also testified about undisputed portions presen- how typical LimeWire works and what a investigation report tence established the user would learn about that program over following facts: particular, time. Detective Barrios told (cid:127) Police identified at least 59 con- files ways district court about various

taining suspected depictions known or of user being could discover that files were posted that had been uploaded from his shared folder other on LimeWire-—and which were there- just users. To take example, one Detec- fore public by accessible to the a com- tive Barrios directed the court’s — attention puter user whose Internet Protocol ad- up displayed and down arrows on a dress was traced back to Durham’s screen shot taken from Durham’s comput- home. arrows, er. These Detective ex- Barrios (cid:127) nearly Police found 50 videos and plained, would have showed active file than images more containing child being transfers through conducted Lime- pornography on a computer seized from Wire —both downloads to Durham’s shared Durham’s home. uploads by folder and other users from (cid:127) Durham police admitted to that he em- Durham’s shared In response folder. ployed por- questions LimeWire to download child follow-up posed by the district nography, searching court, for illicit videos and Detective Barrios testified that images using terms such as “kid “[b]arely possible” sex” was that files could be and “teen sex.” shared on LimeWire without the user’s (cid:127) knowledge, but if only very the user had Although computer Durham’s had sev- experience limited eral with file profiles, sharing. user all of De- depictions tective Barrios went on to say “[a]ny child that comput- stored on the person who’s used that program er were located under Durham’s pass- months would be able to see file word-protected profile. transfers they as taking place, including were down- At sentencing hearing, Detective A1 uploads,” loads and thereby suggesting Springdale, Barrios of the Arkansas Police that unlikely it would experi- be for an Department length testified at about the enced inadvertently. user to share files investigation into Durham’s criminal activi- ty. One things majority Detective Barrios The gives short shrift to most discussed was a desktop user-created icon does, of this evidence. majority how- ever, found under profile, Durham’s named discuss two items: Durham’s admis- “shared-shortcut” or “shared desk-short- sion that he used search terms such as cut.” According Barrios, to Detective a “kid sex” and “teen sex” to search for child ante, user who double-clicked on that icon would pornography, at n. and the go directly to the shared folder desktop associated shortcut to Durham’s shared fold- er, ante, with Durham’s LimeWire account. Detec- majority at 929-30. The asserts knowing receipt possession terms and the shortcut are [of that the search child that they prove only pornography] might have no knowledge not relevant because (and did) equipped to doimload that his was to Durham desired distrib- quali- and hence do not ute.” 598 F.3d at 452. But we pornography, observed Ante, purpose of distribution.” at 930 that of a file fy sharing pro- “[t]he as “indicia Here, share, words, majority gram has created and is to in other n. to dis- Thus, man. counts un- tribute.” Id. that dispatched straw What held “[a]bsent Ultsch, is whether Estey, ignorance der and Stults concrete evidence —evidence that knowledge ignorance Durham had about how Lime- is needed because is entire- ly may worked. The evidence that the ma- counterintuitive —a fact-finder rea- Wire rejects deciding sonably infer that the jority plainly knowingly relevant defendant Durham the file- employed sharing program how much knew about file for its Dodd, acquire sharing program purpose.” he used to child intended Id. In we af- pornography, application even if does not conclu- firmed the district court’s intentionally sively prove that he distribut- the distribution enhancement even though presence presented ed illicit files. The on his desk- the Government no at evidence Dodd, top sentencing. of a shortcut to a folder whose name See id. at 451. After “shared,” may included the word and which the notion that we overturn the dis- containing por- one time stored files trict court’s of the distribution nography, especially proba- merely sup- strikes me as enhancement due to a lack of porting (beyond tive. evidence Durham’s exten- LimeWire) sive use of would be difficult or event, disputed the two items impossible to maintain. should not be considered isolation. The possible, course, introduced above It is proved other facts Durham acquire large presented adequate ignorance used LimeWire evidence of And De- pornography. finding collection of child to undermine the district court’s testimony tective Barrios’s confirmed that that he distributed child pornography. majority could The that Durham experienced suggests an user of LimeWire did so brother, scarcely learning by eliciting testimony avoid that files stored from his ante, 928-29, Casey. his shared folder were accessible other See 931-32. As recounts, already majority “Casey that fact evi- (though users indicated anyone popular peer- familiar he [that] dent installed Limewire computer, such as Li- not instruct Dur- to-peer programs, [that] did meWire). whole, program, as a the evi- ham on how to use the and [that] Considered knowledgeable regarding dence the record was more than suffi- Durham was not Ante, finding support program’s capabilities.” cient to that the at 932. sophisticated majority testimony was a member of LimeWire’s The holds that network, peer-to-peer that he understood constitutes “concrete of Dur- evidence” worked, ante, 931-32, sharing ignorance, how file and that he ham’s at and con- used to distribute cludes that “even under the stricter Dodd knowingly LimeWire standard, application the district pornography. court’s of improp- the distribution enhancement was any If there was residual doubt on this er,” ante, at 932. by point, ought dispelled have been There, skeptical opinion in Dodd. I am that the of a our recent decision hypothesize sibling concerning that can ... that defendant’s the extent noted “[o]ne pleaded guilty sophistication a defendant who to of the defendant’s is the even (8th Cir.2007)] fin, of that kind “concrete evidence” the court 482 F.3d 1008 have Nevertheless, in Dodd had in mind. even made clear that the government must assuming Casey testimony that that prove expected Durham’s defendant to re- [a] probative, thing case-by-case was relevant and it does not ceive a of value on a basis, testimony seriously follow that proved by under- but the issue can be cir- finding analysis mined the district court’s that the cumstantial evidence. The same “very knowledgeable” applies defendant was about to the two-level distribution en- (internal omitted)). most, Casey how worked. At hancement.” LimeWire citations view, testimony my left the court proposition district that the dis- permissible automatically with choice between two trict court applied the en- views of the evidence. v. majori- See Anderson hancement is inconsistent with the 564, 574, City City, ty’s Bessemer 470 U.S. earlier statement the district (1985). 105 S.Ct. 84 L.Ed.2d 518 sophistication “evoked the familiar think Whether we the district court basis for ... [applying] the distribution adopted plausible enhancement, the more view is of no as it concluded Dur- [that] moment, for there per- ‘very knowledgeable’ “[w]here are two ham was about Lime- evidence, ante, missible views of the the fact- capabilities,” wire’s If 929. finder’s choice between them cannot be district court made a factual finding about erroneous,” clearly (citing sophistication id. United Durham’s majority —and Co., 338, 342, did, ante, States v. says Yellow Cab 338 U.S. that it see at 928-29'—then (1949)). 70 S.Ct. 94 L.Ed. 150 See the district court’s of the distri- Tournier, also United States v. bution enhancement could not have been (8th Cir.1999) (“Under 645, 648 the clear automatic.. standard, error agree we need not with the application theory automatic findings disputed district court’s fact to way: namely, flawed another it is in- affirm.”). unexceptional This principle is compatible fair reading of the entirely consistent with the court’s reason district court’s sentencing comments Dodd, reject I majority’s so hearing. This conclusion becomes virtual- suggestion that can distinguished Dodd be ly inescapable once the district court’s away.14 quoted selectively and inter- comments— That leaves majority’s assertion that preted uncharitably majority —are

the district court “violated placed Here, then, [a] well-estab in context. is a slightly lished principle of our case abridged law auto version of what the district court matically applying the distribution en in ruling enhancement, said starting hancement based on page Durham’s use of a on sentencing 75 of the transcript ante, file-sharing program,” at 931. (page See 90 of the transcript consolidated Dodd, (“[O]ur also 598 F.3d at 452 n. 2 change plea and sentencing hear- decisions applying ings): [United States Grif- reject (8th Cir.1987)), denied, I implication likewise Durham's cert. 560 U.S. panel disregard this can -, 3384, either Dodd or hold (2010), 130 S.Ct. 177 L.Ed.2d 305 ante, wrongly that Dodd was decided. See at ”[o]nly may and the court en banc overrule times, many 932 n. 9. As we have said ''[o]ne precedent, subject excep circuit to a limited panel liberty of this Court is not at to disre- intervening Supreme tion in the case anof gard precedent by a handed down another Court decision that is inconsistent with circuit panel,” Zuniga, United States v. precedent,” (citing Young Hayes, id. (8th Cir.2009) curiam) (alteration (per (8th Cir.2000)). Scott, original) (quoting Drake v. right. gentlemen, shown,

All Ladies and at and cannot be at least to the satisfaction, provision part issue here is the or the of defendant’s that he knew case, Investigation Report Pre-sentence that would be the that if these prepared by that was Mr. placed [a Scott U.S. materials were in the Limewire Officer], system, is, which opines Probation and or whatever it that that could states that he believes that there is a amount to a posting, would make it specific public offense characteristic that war- available for viewing. points

rants the addition of two to the defendant, course, of has not tes- total offense level. The base total of- so, He obligation tified. has no to do by fense level started as shown but he has not indicated what his Paragraph 31 of the Pre-sentence Inves- thoughts body were.... [I]n tigation Report, two-point and had a in- [presentence] report, there ais recount- Paragraph crease under 32. The chal- what say he did when he was lenged Paragraph increase is under interviewed, and according to the he—

report, portions which these are not ob- to, jected he was if asked he downloaded Now, commentary in the to [section a lot of stuff to computer, and 2G2.2], he there is a definition[] section “ said he used Limewire to download Application under Note 1: ‘Distribu- songs. they, When told that the detec- act, any tion’ means including possession tives, were aware that there was child distribute, production, with intent to ad- porn computer on his they and vertisement, wanted transportation^] and relat- it, to know who responsible was ed to the transfer of material involving initially advised the detectives that he exploitation the sexual aof minor. Ac- “doesn’t look at that stuff’. cordingly, posting distribution includes involving exploita- material the sexual When told his had lot of tion of a minor public on website for activity regarding child pornography, viewing, but does include the mere responded Durham that he watches a lot solicitation of such material a defen- of “To Catch a Predator”. Durham was dant.” asked, agreed to an interview later Springdale becomes, Depart- I think Police question

So un- interview, During ment. ... that der the he ad- circumstances here shown showing daughter mitted to proof, picture ... whether there was a 12-year[-]old girl of a performing oral “posting” of the material. I haven’t sex on a purposes. man for educational persuade heard evidence that would explained that he me that showed this possessed defendant picture daughter to his to tell her intent to distribute or advertise or trans- happen could to her if she port, but I think that there is was not care- evidence ful on the internet. picture Whether the posted indicate this material was came from the because it internet is not clear. It placed on a Limewire hasn’t way been shown to me one or the program, signal, perhaps only other. purpose very which is to do that

thing, post permit it to be shared daughter stated he and his [Durham] by any might and all who choose to then watched “To Catch a Predator”. access that site. looking Durham then admitted to at 30 is, well,

... defense’s posture images 12-year[-]old girls, [T]he to 40 et- true, shown, cetera, may all be but it is not etcetera. He said that he would since, course, ... he terms on Limewire to unre type in certain himself could do it. images. download these ... that I have proof standard [T]he Now, testimony on that and the based proof sentencing hearing in a is not be- here, I heard it would seem to that have doubt, a far lesser yond a reasonable but very knowl- me that the defendant not, likely than or standard that is more program the Limewire edgeable that the evi- basically preponderance ... him to access and permit would dence, by that you Judged if will. stan- he pom as and when download child dard, I say I am not able to that can chose, getting any permission without that Mr. Durham did not conclude that that feature anybody, from images that he download- know that the him to do that. It’s permit would present posted on his ed and had credulity “It strains cre- strange [read: accessible program Limewire were not not, by dulity”] to reason that he would public, to the and so I will overrule the knowledge, that understand that it’s objection. two-point I do think the en- that if could do two-way he streetf] appropriate, hancement is so I will over- that, likely that could quite it’s others as objection rule the on that score. well. added.) (Emphasis testified, quite I think His brother Pierce, attorney, then James candidly, that he well knew what moved for two-level reduction under sec- easily ac- program was and how it was 2G2.2(b)(l), if applies only tion “the difficulty cessible. I think the with the defendant’s conduct was limited to the re- proof they Government’s here is have no ceipt involving or solicitation of material saying statement from Mr. Durham exploitation the sexual of a minor.” Hav- that, he knew and that he was aware ing found seconds earlier that Durham’s on posted images when he these Lime- receipt conduct was not limited to or solici- it, public wire that the could access even tation, the district court could have sum- and did from other sites. as could marily rejected requested reduction. But the of direct evidence on absence Instead, gave the district court this addi- that, I don’t think curtails or forbids a explanation: tional conclusion that he did know. Well, respect, I don’t think that mentioned, Pierce, you the section Mr. is applicable by own terms. And I did its computer, program The default read them earlier. I’ll mention them existence, think, troubling I initial- its (b) ], again. specific Under [subsection ly, but when it is seen that the defen- (A)”— characteristics, ... “If offense knowledgeable enough, dant was from prong and that’s the first “[subsec- gained however source he his knowl- — ... (a)(2) applies” tion it does be- ] edge, profile to enter his own and to —and (B) cause there’s a awarded—“and defaults, changes make certain to those the defendant’s conduct was limited to one which to select and utilize [was] receipt or solicitation of material specifically an icon that mentions involving exploitation the sexual of a files, it sort common share[d] of defies minor.” person that a who could sense to think my ruling what I’ve upon and would do that would not believe Based limited to that someone other than could his conduct was not heard^ himself [ie., pornography] access the that were on that Lime- that because files

943 could posted Special sentencing, on the Limewire. He Condition 5 so our [ie., See, pornography], plain it review is for error. e.g., have received United Kerr, [ie., me, it to or solicited child States seems Cir.2006). utilizing pro without Because we conclude that the pornography] plain which featured automatic file-shar district court did not commit error in gram condition, qualifies imposing special go I don’t think he this to ing. So on claim, deny your I’ll motion consider Durham’s alternative that provision. that So the district court’s oral pronouncement for that reason.15 inconsistent with the description Special Considering all of the district court’s in Condition 5 the written judgment. analysis, giving weight substantial italics, in I placed the comments am con- purpose reviewing For the Durham’s ruling vinced that the district court’s on plain challenge, error we assume Spe proper the distribution enhancement was cial Condition 5 is limited to what the respects. in all The district court’s exten- pronounced district court at sentencing; issue, culminating sive discussion of the specifically: “A fifth added condition will finding sophisti- a factual about Durham’s be the defendant shall not access the inter cation, proposition refutes net prior from location without ap enhancement applied court automati- proval probation office and for a Indeed, cally. judge if the district meant justified prohibited and not reason. The making to avoid an individualized determi- defendant, however, shall not have internet nation, passing strange it would be for him access at his residence.” As Durham rec spend many explaining sup- so words ognizes, albeit with a little equivocation, posedly automatic decision. Since I see no Ristine, our decision in United States v. concluding basis for that the district sound (8th Cir.2003), 335 F.3d 692 precludes us clearly finding court erred in that Durham applying from a “relaxed” version of the pornography, distributed child I would af- (There plain error standard. is no dissent firm of the the court’s enhance- 935.) ante, point, see theOn 2G2.2(b)(3)(F). ment under section merits, persuaded by we are not argument that the district court committed II. plain error in imposing Special Condition Kerr, (“Plain Regarding Special Condition this 5. See F.3d at 520-21 joins opinion, Judge Beam rele- error occurs if the district court deviates part, rule, vant announces judgment legal from a the error is clear under law, court. We first address Durham’s chal- current and the error affects the de lenge to the district court’s oral pro- rights.” fendant’s substantial (quoting Crose, nouncement restricting Durham’s access to United States v. (8th Cir.2002) curiam))). object (per

the Internet. Durham did not 2G2.2(b)(3)(F), majority suggests quoted already that the last tion which it had paragraph granted, requested is the best evidence that the dis- with the reduction under 2G2.2(b)(l). applied trict court distribution enhance- section Because the district automatically, stating granted ment that the district court could not have the reduction "explicitly ruling reversing concluded Durham could without it had made on earlier, have avoided the enhancement had he not a few enhancement seconds Ante, file-sharing program.” obviously used at 931. motion for a reduction was doomed, majority's interpretation But the cannot be and the district court would have correct, justified rejecting unless one assumes that the district been the motion without court conflated the enhancement under sec- further comment. 944 Bender, 751; Mark, a sentencing

While court has “wide dis See at 566 F.3d 425 impose special cretion” to conditions of F.3d release,

supervised such conditions must then, question, Special is whether satisfy requirements the set out in 18 greater Condition 5 involves a deprivation 3583(d). U.S.C. United v. States liberty than reasonably necessary is un- (8th Crume, 728, 422 F.3d 732-33 Cir. der the circumstances. We are convinced 2005). “no,” that the principal answer is for two First, Special reasons. Condition 5 does

First, special the conditions must be not amount to a complete ban on Internet “reasonably related” to ... the nature ante, fact, access. Contra at 936. In the offense, and circumstances of the the permits condition Durham to access the history characteristics, defendant’s Internet long permission as as he obtains conduct, the deterrence of criminal the from probation the In reviewing office. protection of the public from further conditions, similar we have found that re- defendant, crimes of the and the defen- computer strictions on use and Internet educational, vocational, dant’s medical or access do not constitute a “total ban” Second, other correctional needs. the where the defendant can permission seek conditions greater must no] “involve! from probation his perform officer to deprivation liberty than reasonably is restricted activities. See United States v. necessary” deterrence, to advance Fields, (8th Cir.2003); 324 F.3d 1027 protection public from future Bender, see also 566 (up- F.3d at 751-52 defendant, crimes and the defen- holding a so-called computer “ban” on use dant’s correctional Finally, needs. access, and Internet in part because “[t]he conditions must be any consistent with ban allows [the to use a com- defendant] pertinent policy statements issued puter and permission internet with the the [United States Sentencing Commis- officer”); Ristine, probation his sion], at 695-96 (upholding a condition prohibit- (second Id. at 733 alteration in original) defendant, Ristine, from “owning (citations omitted). operating” or a computer without per- probation officer, mission of his in part Durham does argue that Special because “Ristine—like the Fields defen- Condition 5 is inconsistent any perti- not wholly dant —is using barred from policy nent statement. And there is no Thus, computer”). Special Condition 5 real doubt restricting Durham’s ac- must be merely treated as a partial depri- cess to the Internet is reasonably related vation of Durham’s interest in having un- to the nature and circumstances of the fettered access to the Internet. which, minimum, at a involved offense— using acquire large Second, LimeWire to collec- this is not a case which “the tion of child pornography. See United record is devoid of evidence that de- [the Bender, v. States 751 has fendant] ever used computer Cir.2009); Mark, United States anything beyond F.3d simply possessing child (8th Cir.2005). Moreover, Crume, we are pornography.” Cf. satisfied that challenged condition is contrary, 733. On the the record includes designed conduct, to deter similar criminal much showing evidence that Durham used protect public from further crimes his to distribute child pornogra- that Durham might perpetrate, phy. otherwise supra See Part I. Even if one be- and to serve Durham’s correctional needs. lieves that the enhancement under section 2G2.2(b)(3)(F) ap- capabilities not have been vice with internet or should access alleged ignorance, the internet from location without plied pri- due to approval by probation that at 59 files or beyond dispute least office and for still justified containing suspected depictions known or reason. The defendant shall on Li- pornography posted of child were not have internet access at his residence.” added.) to (Emphasis suggests therefore made accessible meWire —and In- public by computer judgment user whose the written conflicts with the — pronouncement Protocol address was traced back to oral because it ternet broadens Durham’s home. the restriction to extend to a array vast devices, including modern many cell precedents Our this area establish phones, portable players, media and televi- may impose that district courts more re- sions, among things. panel other where, here, conditions a de- strictive as unanimously agrees that sugges- involved distribution of fendant’s offense ante, tion is correct. at See 934-35. Ristine, pornography. See 335 F.3d 696; Fields, 1027; 324 F.3d see also Our cases make clear that an “[w]here (“We Kerr, 472 F.3d at 523 have found oral sentence and judgment the written distribution of- conflict, [that] the oral sentence controls.” Unit posses- Foster, (8th fenses are more serious than mere 821, ed States v. 514 F.3d Fields, (citing Cir.2008) sion offenses.” 324 F.3d at Glass, (quoting United States v. 1027)). Special per- (8th Because Condition 5 21, Cir.1983)). 720 F.2d 22 n. 2 In mits Durham to access the Internet as instance, this discrepancy we resolve the long permission as he obtains from the by remanding with instructions to amend office, probation we see no sound basis for portion relevant of the written judg concluding that the condition involves a ment to conform to the oral pronounce greater deprivation liberty than rea- See, is e.g., ment. United Alburay, States v. sonably necessary (7th under circum- Cir.2005); United Martinez, stances. We therefore hold the dis- States v. discretion, Cir.2001) curiam).

trict court did not abuse its (per err, plainly imposing Special much less

Condition 5. III. All that remains is determine whether summary, join I Parts II.B.l and pronouncement the district court’s oral Bye’s II.B.2 of Judge partial majority inconsistent with description its written of opinion, I respectfully dissent from the Special 5. Recall that at Condition sentenc- outcome and rationale set forth Part ing, the following: district court said the II.A. to Special opin- As Condition “A fifth added condition will be the defen- ion judgment announces the of the court. dant shall not access the internet from conclude that the We district did not prior approval by pro- location without plain imposing Special commit error in justified bation office and for a not 5, but we remand with Condition instruc- defendant, prohibited reason. The howev- judgment tions to amend the written er, shall not have internet access at his conform to pro- the district court’s oral later, day residence.” One the district nouncement. judgment, court entered a written Special describes Condition 5 as follows:

“The an defendant shall have access to

internet-connected or other de-

Case Details

Case Name: United States v. Durham

Court Name: Court of Appeals for the Eighth Circuit

Date Published: Aug 26, 2010

Citation: 618 F.3d 921

Docket Number: 09-2951

Court Abbreviation: 8th Cir.