UNITED STATES of America, Plaintiff-Appellee, v. Armando L. RAMOS, Defendant-Appellant.
No. 11-3126.
United States Court of Appeals, Tenth Circuit.
Aug. 27, 2012.
695 F.3d 1035
James A. Brown, Assistant U.S. Attorney (Barry R. Grissom, U.S. Attorney, with him on the brief), Topeka, KS, for Plaintiff-Appellee.
Before HARTZ, HOLLOWAY, and HOLMES, Circuit Judges.
HOLMES, Circuit Judge.
Armando Ramos attacks in this appeal the legal validity of his sentence for receipt of child pornography, in violation of
I
Mr. Ramos was indicted by a federal grand jury in Kansas on two counts relating to the receipt and possession of child pornography. The charges arose out of an investigation that began with a tip from German authorities who were “policing the [e]Donkey peer-to-peer file sharing network and observed a known child pornog-
During the search, an investigator interviewed Mr. Ramos. He admitted to being the sole user of the computers in his home, and to using eMule, the “specific program that ... access[es] the [e]Donkey network,” as a vehicle for obtaining child pornography. Id. at 24-25. When a user initiates a download, the eMule program automatically places the material into shared folders, accessible to other Internet users. However, Mr. Ramos told the ICE agent that he always attempted to transfer his child-pornography files out of the shared eMule folders. And the government presented no evidence that any of the shared folders contained child pornography.
Mr. Ramos entered a plea of guilty without a formal plea agreement to Count One of a two-count Indictment, which charged him with “knowingly and intentionally receiv[ing] ... [child pornography]” in violation of
The U.S. Probation Office prepared a Presentence Investigation Report (“PSR”); it set Mr. Ramos’s base offense level at twenty-two pursuant to
prepared Jan. 21, 2011, revised Feb. 14, 2011). The PSR also recommended numerous specific-offense enhancements, including, as relevant here, a five-level enhancement under
Mr. Ramos raised multiple objections to the PSR. Pertinently, he objected to the five-level enhancement under
After conducting a hearing, the district court issued a written letter to counsel ruling on many of Mr. Ramos’s objections. The court first applied the two-level enhancement under
The court also rejected Mr. Ramos’s arguments regarding the alleged unconstitutionality of the mandatory-minimum provision of
II
On appeal, Mr. Ramos raises three issues. First, he contends that there was an insufficient basis for the district court to conclude that he “distributed” child pornography under
For the reasons explicated below, we reject Mr. Ramos’s first, Guidelines-based argument as unpersuasive and dismiss the remainder of his appeal involving his constitutional challenges for lack of subject-matter jurisdiction. As to the latter disposition, we conclude that Mr. Ramos does not have standing to challenge the five-year mandatory-minimum sentence prescribed by
A
Mr. Ramos argues that he did not “distribute” child pornography for purposes of
Mr. Ramos’s argument relates to the procedural reasonableness of his sentence because he contests the district court’s calculation of his Guidelines sentencing range. See United States v. Halliday, 665 F.3d 1219, 1222 (10th Cir.2011) (“Defendant argues that the district court erred procedurally in applying [a] sentencing guideline ...” (emphasis added)); United States v. Lente, 647 F.3d 1021, 1030 (10th Cir.2011) (“[A] procedural challenge relates to the ‘method by which the sentence is calculated.’” (quoting United States v. Wittig, 528 F.3d 1280, 1284 (10th Cir.2008))); see also United States v. McGehee, 672 F.3d 860, 874 (10th Cir.2012) (citing authorities). “We review a sentence for abuse of discretion” and, in doing so, “review the court’s legal conclusions de novo and its factual findings for clear error.” United States v. Burgess, 576 F.3d 1078, 1101 (10th Cir.2009); see Halliday, 665 F.3d at 1222-23 (“When reviewing the district court’s calculation of the guidelines, we review legal questions de novo and factual findings for clear error, giving due deference to the district court’s application of the guidelines to the facts.” (quoting United States v. Mollner, 643 F.3d 713, 714 (10th Cir.2011)) (internal quotation marks omitted)). “The government bears the burden of proving sentencing enhancements by a preponderance of the evidence.” United States v. Orr, 567 F.3d 610, 614 (10th Cir.2009).
Under the Guidelines, the court should apply a two-level reduction to the defendant’s base offense level where “[his] conduct was limited to the receipt or solicitation” of child pornography and the defendant did not intend to “distribute”
We must resolve a key Guidelines interpretation issue. Specifically, we must determine the meaning of “distribution” under
Mr. Ramos suggests that the Guidelines require an accompanying showing of intent to distribute illicit material in order to establish “distribution.” See Aplt. Opening Br. at 10, 13-14 (“If the material identified by the government ... was available in one of the folders ..., there were many reasons why the material was there unrelated to an intent to distribute.”). We disagree. Section 2G2.2’s commentary defines “distribution” as “any act, including possession with intent to distribute, production, transmission, advertisement, and transportation, related to the transfer of material involving the sexual exploitation of a minor.”
While the commentary states that “distribution” encompasses conduct involving “intent” or “purpose,” it plainly states that “any act ... related to the transfer of material involving the sexual exploitation of a minor” constitutes “distribution.”
Moreover, § 2G2.2 broadly sets forth the definition of “distribution” as “any act
Indeed, several other circuits have adopted a broad construction of § 2G2.2, declining to make an intent-to-distribute determination a prerequisite for a finding of “distribution.” See, e.g., United States v. Bolton, 669 F.3d 780, 782 (6th Cir.2012) (suggesting agreement with the decisions of “[a]t least two circuits” which “appear to hold that the government may prove distribution merely by showing that the defendant knowingly used a peer-to-peer file-sharing program to download child pornography”); United States v. Layton, 564 F.3d 330, 335 & n. 2 (4th Cir.2009) (holding that “distribution” under § 2G2.2 includes the knowing “use of a peer-to-peer file-sharing program” that allows third-parties to access child pornography files (quoting
In light of the foregoing, we hold that an intent to distribute is not required for an act to qualify as “distribution” under
Mr. Ramos places noteworthy reliance on the Eighth Circuit’s decision in United States v. Durham, 618 F.3d 921 (8th Cir.2010). It is not patent, however, that Durham varies significantly from the path we chart here. After thoroughly reviewing its prior cases, the Durham court reversed the district court because, “contrary to [its] precedent,” the court had “automatically imposed the enhancement because [the defendant] used a file-sharing program,” “rather than deciding the merits of the enhancement on an individualized basis under the facts.” Id. at 931. We do not quarrel with that specific conclusion.
Like Durham, there is no direct evidence here of distribution. However, even if (as in Durham) indirect proof of Mr. Ramos’s sophisticated knowledge of his eMule file-sharing program were required, we would have no difficulty concluding that the district court did not err in finding that he had distributed child pornography under
The district court summarized the government’s evidence in its rejection of Mr. Ramos’s relevant objection to the PSR:
Keeping in mind that the government’s burden is by preponderance of the evidence, ... the facts are that defendant is a sophisticated computer user who accessed large amounts of child pornography over a long period using a file sharing program. It is reasonable to infer from his use of the program, his sophistication, and his statements to [an ICE agent], that he understood how to place the pornographic images he downloaded in a file which could not be accessed by others. The contrary inference that he inadvertently or mistakenly or for some other innocent reason did not move the materials [to such an inaccessible file] is not reasonable.
R., Vol. 1, at 433 (Ltr. to Counsel of Record from Judge Belot, dated Apr. 13, 2011) (emphasis added). We discern no “clear error” in the foregoing factual findings. See Orr, 567 F.3d at 614-15; see United States v. Dodd, 598 F.3d 449, 451 (8th Cir.2010) (emphasizing the “fact-intensive” nature of the inquiry regarding whether the government has met its burden in establishing the factual predicate of “distribution” under § 2G2.2). Given these facts, we have no difficulty concluding, even under the reasoning of Durham, that Mr. Ramos engaged in “an[ ] act ... related to the transfer of [illicit] material.”
Mr. Ramos claims that there must be “[some] affirmative act on the part of the defendant to make the material available.” Aplt. Opening Br. at 11 (emphasis added). In this regard, he makes much of the alleged difference between eMule and other programs that access peer-to-peer networks because, as his own expert witness opined, “[t]he user does not direct [incoming material] to [shared] folders.” Aplt. Opening Br. at 10. Rather, he contends, eMule operates to automatically share files that are downloaded through standard “temp” and “incoming” folders available on
Mr. Ramos’s affirmative-act argument is unavailing. First, his reliance on Shaffer and Geiner is misplaced. In Shaffer, we considered whether a defendant had “distribute[d]” child pornography within the meaning of
In Geiner, we considered the meaning of “[d]istribution [of child pornography] for the receipt, or expectation of receipt, of a thing of value, but not for pecuniary gain” under
We rejected defendant’s suggestion that this five-level enhancement applies only to a “bargained-for exchange or agreement between two or more traders in child pornography.” Id. at 1108-09. We noted that the Guidelines commentary defines the language of the enhancement as “any transaction, including bartering or other in-kind transaction, that is conducted for a thing of value, but not for profit.” Id. at 1108 (emphasis added) (quoting
Because the Geiner defendant “d[id] not dispute that he attempted to distribute child pornography within the meaning of
Mr. Ramos’s argument appears to be that his conduct did not constitute distribution under
Furthermore, even assuming arguendo that the government was obliged to demonstrate that Mr. Ramos engaged in an affirmative act to prove that he distributed child pornography under
Irrespective of whether it was Mr. Ramos’s subjective desire to prevent sharing of his child pornography, it is indisputable that, by using eMule, Mr. Ramos foreclosed that option. As he admits in his brief, “[w]hile material is being downloaded [on eMule] ... [,] it is also available to other computers,” Aplt. Opening Br. at 10, and “[t]here [i]s no ... selection available under eMule” to prevent the sharing, id. at 18; see also id. at 12 (“Mr. Ramos could not download the material into folders which were not accessible to others online.”). A defendant’s inability to adjust a peer-to-peer file-sharing program’s default settings to prevent sharing cannot provide an effective safe harbor for that defendant’s continued use of the network to violate the law. More specifically, while other file-sharing software may permit the user to completely block third-party sharing, eMule does not, and Mr. Ramos’s purported personal desire not to share is irrelevant under these circumstances. This is so because even if (as he claims) Mr. Ramos actively attempted to remove child-pornography files from the shared folders, Mr. Ramos continued to use eMule with knowledge that the program was designed to permit other users to access his downloaded files. In sum, even assuming that it was required, the government offered evidence that Mr. Ramos engaged in a culpable affirmative act.
Accordingly, we conclude that the district court did not err in applying the enhancement under
B
We generally review constitutional challenges to a statute de novo. See United States v. Dorris, 236 F.3d 582, 584 (10th Cir.2000). However, we do not reach the merits of Mr. Ramos’s challenges. Specifically, we hold that Mr. Ramos lacks standing to assert his challenges because his sentence was not affected by
The requirements of Article III standing are well-settled. In brief, there must be a showing of “[an] injury in fact, traceability, and redressability.” Coll v. First Am. Title Ins. Co., 642 F.3d 876, 892 (10th Cir.2011) (quoting S. Utah Wilder-ness Alliance v. Office of Surface Mining Reclamation and Enforcement, 620 F.3d 1227, 1233 (10th Cir.2010)) (internal quotation marks omitted); see also Turner v. McGee, 681 F.3d 1215, 1218 (10th Cir.2012) (“To establish Article III standing, a plaintiff must demonstrate that he has satisfied each of three ‘irreducible constitutional’ elements. Specifically, the plaintiff must show that: (1) he has suffered an ‘injury in fact’; (2) the injury is ‘fairly traceable’ to the complained-of conduct; and (3) it is ‘likely as opposed to merely speculative that the injury will be redressed by a favorable decision.’” (citation omitted) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992))).
Of particular relevance here, the traceability component of the standing test contemplates “a causal relationship between the injury and the defendants’ challenged acts.” PeTA, People for the Ethical Treatment of Animals v. Rasmussen, 298 F.3d 1198, 1202 (10th Cir.2002); see Bronson v. Swensen, 500 F.3d 1099, 1109 (10th Cir.2007) (“The principle of causation for constitutional standing requires a plaintiff’s injury to be ‘fairly traceable to the challenged action of the defendant[.]’” (emphasis omitted) (quoting Nova Health Sys. v. Gandy, 416 F.3d 1149, 1156 (10th Cir.2005))); cf. 13A Charles Alan Wright, et al., Federal Practice & Procedure § 3531.5, at 36 n. 21 (3d ed. Supp.2012) (“The standing requirement that injury be fairly traceable to the complained-of conduct is not equivalent to a requirement of tort causation. Something less than the tort concept of proximate cause is required. Traceability does not require that the defendants be the only cause of the injury.” (emphasis added)).
“The standing Article III requires must be met by persons seeking appellate review, just as it must be met by persons appearing in courts of first instance.” Arizonans for Official English v. Arizona, 520 U.S. 43, 64, 117 S.Ct. 1055, 137 L.Ed.2d 170 (1997); accord Thomas v. Metro. Life Ins. Co., 631 F.3d 1153, 1159 (10th Cir.2011); see Fla. Wildlife Fed’n, Inc. v. S. Fla. Water Mgmt. Dist., 647 F.3d 1296, 1302 (11th Cir.2011) (“If at any point in the litigation the plaintiff ceases to meet all three requirements for constitutional standing, the case no longer presents a live case or controversy, and the federal court must dismiss the case for lack of subject matter jurisdiction.”). “To have standing, one must be aggrieved by the order from which appeal is taken.” Uselton v. Com. Lovelace Motor Freight, Inc., 9 F.3d 849, 854 (10th Cir.1993); see Raley v. Hyundai Motor Co., 642 F.3d 1271, 1275 (10th Cir.2011) (“[T]hese individuals possess Article III standing in the sense that they have been injured by a district court ruling and a favorable decision on appeal would ameliorate that injury.”). “Just like litigants generally cannot bring suit to vindicate the rights of others, parties generally do not have standing to appeal in order to protect the rights of third parties.” Thomas, 631 F.3d at 1159 (citation omitted).
The parties here did not address standing in their initial round of briefing. However, standing is a question of “justiciability [that] implicates this court’s jurisdiction”; consequently, where the record reveals a colorable standing issue, we have a “duty to undertake an independent examination” (sua sponte if necessary) of that issue. Morgan v. McCotter, 365 F.3d 882, 887 (10th Cir.2004); see Brammer-Hoelter v. Twin Peaks Charter Acad., 602 F.3d 1175, 1181 (10th Cir.2010) (“Although this question [i.e., standing] was not raised by the parties nor addressed by the district court, we raise this issue sua sponte, as we must[.]”); City of Colo. Springs v. Climax Molybdenum Co., 587 F.3d 1071, 1078-79 (10th Cir.2009) (“The federal courts are under an independent obligation to examine their own jurisdiction, and standing is perhaps the most important of the jurisdictional doctrines.” (quoting FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 231, 110 S.Ct. 596, 107 L.Ed.2d 603 (1990)) (internal quotation marks omitted), overruled on other grounds by City of Littleton v. Z.J. Gifts D-4, LLC, 541 U.S. 774, 774-75, 124 S.Ct. 2219, 159 L.Ed.2d 84 (2004)).
Where constitutional challenges are at issue, this judicial duty certainly is no less stringent, for federal courts have an historic obligation to avoid unnecessarily deciding constitutional questions. As the Supreme Court stated:
Federal courts are courts of limited jurisdiction. They have the authority to adjudicate specific controversies between adverse litigants over which and over whom they have jurisdiction. In the exercise of that authority, they have a duty to decide constitutional questions when necessary to dispose of the litigation before them. But they have an equally strong duty to avoid constitutional issues that need not be resolved in order to determine the rights of the parties to the case under consideration.
Cnty. Court of Ulster Cnty. v. Allen, 442 U.S. 140, 154, 99 S.Ct. 2213, 60 L.Ed.2d 777 (1979). To assist us in carrying out our independent examination, we paused to solicit supplemental briefs from the parties regarding our Article III jurisdiction and, in particular, the standing issue. See City of Hugo v. Nichols (Two Cases), 656 F.3d 1251, 1255 (10th Cir.2011) (“The standing requirements rooted in Article III apply equally on appeal as they do in the district court. Accordingly, this court ordered the parties to submit supplemental briefs addressing whether either appellant has standing.” (citation omitted)); cf. Schmeling v. NORDAM, 97 F.3d 1336, 1338 n. 1 (10th Cir.1996) (“In certain circumstances, we might request additional briefing before deciding a jurisdictional question not squarely raised by the parties, but in this case, we see no need to do so.”).
Turning to the standing question, we are guided by the Supreme Court’s words in Allen:
A party has standing to challenge the constitutionality of a statute only insofar as it has an adverse impact on his own rights. As a general rule, if there is no constitutional defect in the application of the statute to a litigant, he does not have standing to argue that it would be unconstitutional if applied to third parties in hypothetical situations.
442 U.S. at 154-55 (citation omitted). Consistent with these thoughts, the Court previously has stated, “Embedded in the traditional rules governing constitutional adjudication is the principle that a person to whom a statute may constitutionally be applied will not be heard to challenge that statute on the ground that it may conceivably be applied unconstitutionally to others, in other situations not before the Court.” Broadrick v. Oklahoma, 413 U.S. 601, 610, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973).
In the criminal sentencing context, these principles would seemingly lead to the conclusion that a defendant does not have standing to mount a constitutional challenge to the application of a statute, if that application did not adversely affect his sentence—that is, cause his sentencing outcome (i.e., his sentencing injury). Employing similar reasoning, we previously have rejected on standing grounds a federal criminal defendant’s constitutional equal-protection and due-process challenges to
Similarly, a few of our sister circuits have rejected on standing grounds constitutional challenges to the mandatory-minimum sentences prescribed by certain drug statutes, where those courts have concluded for varying reasons that the defendants’ actual sentences were not adversely affected by the statutorily prescribed mandatory minimums. See United States v. Gray, 577 F.3d 947, 950-51 (8th Cir.2009) (holding that “[defendant’s] sentence was unaffected by the [60-month] statutory minimum sentence” where “the district court imposed a sentence ten months above the 60-month mandatory minimum” and, as such, “the [district] court’s sentencing decision was not constrained by [the mandatory minimum]”); United States v. Robinson, 241 F.3d 115, 122 (1st Cir.2001) (“The principal problem with the appellant’s thesis is that she lacks standing to mount the challenge. Her sentence was not premised on the five-year mandatory minimum set out in section 841(b)(1)(B), but, rather, on the applicable sentencing guidelines.”); United States v. Johnson, 886 F.2d 1120, 1122 (9th Cir.1989) (“[Defendants], who were sentenced to eight and ten years respectively, were not affected by the [five-year] mandatory minimum provision of the statute. They lack standing to challenge that aspect of [
While the universe of such cases is comparatively small and the reasoning underpinning these cases is not extensive, the standing defect that is most easily identified in their analyses is one of traceability (i.e., causation).4 See Scott, 627 F.3d at
Guided by the foregoing authorities, we conclude that Mr. Ramos lacks standing to assert his constitutional sentencing challenges because his sentence was not affected by
Nevertheless, Mr. Ramos contends that the five-year mandatory minimum for receipt of child pornography affected his sentence because the receipt crime yields a
First, Mr. Ramos has not even begun to establish a nexus between the base offense level prescribed by the Sentencing Commission and the five-year statutory mandatory minimum. The Sentencing Commission retains the unique function of providing an “expert assessment of appropriate sentencing practices,” a process “often informed by empirical data regarding actual sentencing.” United States v. McBride, 633 F.3d 1229, 1232 (10th Cir.2011); see United States v. Bistline, 665 F.3d 758, 763-64 (6th Cir.2012). The higher base offense level assigned to the receipt offense could very well reflect the Sentencing Commission’s independent view that receipt of child pornography is more worthy of punishment than possession of child pornography—that is, evince the Commission’s independent policy determination that, with respect to culpability, the two forms of conduct are not in fact equivalent. Cf. United States v. Garner, 490 F.3d 739, 743 (9th Cir.2007) (“[T]he Sentencing Commission could easily have a rational basis for increasing the sentences of defendants who have previously sexually abused or exploited children, and then later receive, possess, or distribute material involving the sexual exploitation of children, even if years later.”); United States v. Meskini, 319 F.3d 88, 92 (2d Cir.2003) (“[T]he Sentencing Commission had a rational basis for creating a uniform criminal history category for all terrorists under
Mr. Ramos has not marshaled any arguments to the contrary. And, if the receipt base offense level does reflect the Sentencing Commission’s independent judgment, then even if the Commission were wrong in establishing that level (a matter that is not before us), the base offense level still would not be a byproduct or function of Congress’s five-year mandatory-minimum sentence. To put it another way, assuming that the Commission exercised its independent policy judgment in setting the higher base offense level for receipt, it could not be said to have adopted that offense level because Congress elected to impose a five-year mandatory minimum on the receipt offense. And Mr. Ramos has not given us any basis to believe that the Sentencing Commission did not in fact independently exercise its judgment in this manner. In any event, Mr. Ramos has completely failed to establish a nexus between the higher Guidelines base offense level for receipt and the five-year mandatory minimum of
Furthermore, as the government notes, absent any upward adjustments, a defendant with Mr. Ramos’s criminal history (i.e., a criminal history category of I), who is assigned a base offense level of twenty-two, would be in a Guidelines range below the five-year mandatory minimum—specifically, a range of forty-one to fifty-one months. Therefore, “the base offense level of 22 was not tethered in any way to a
In addition, Mr. Ramos contends that “the mandatory minimum statute could have affected the Court’s sentence by setting a basement number, 60 months, which formed the lowest point in the analysis and the starting point for the district court’s evaluation.” Aplt. Supp. Br. at 5 (emphasis added). However, Mr. Ramos’s argument is purely conjectural. There is not the slightest indication in the record that the five-year mandatory minimum affected the district court’s exercise of its sentencing discretion and resulted in the court giving Mr. Ramos a higher sentence than it otherwise would have. See Aplee. Supp. Br. at 11 (“[T]he district court showed no inclination whatever to sentence the defendant to a sentence below 87 months, even though it could have imposed a sentence of 60 months. This constitutes conclusive evidence that the five-year mandatory minimum had nothing to do with the defendant’s sentence.”). Indeed, Mr. Ramos acknowledges in his supplemental brief that the district court relied upon the Guidelines in fashioning his sentence. See Aplt. Supp. Br. at 5 (“Admittedly there is no indication in the district court’s decision that the court did anything other than measure the parties’ arguments all limited to calculating the guideline range and then deciding upon a number within that range.”). Accordingly, we conclude that Mr. Ramos’s argument is without merit.5
For the foregoing reasons, we conclude that Mr. Ramos cannot establish standing to present his constitutional challenges to the five-year mandatory minimum of
III
In sum, we AFFIRM Mr. Ramos’s sentence in part, rejecting his Guidelines-based challenge, and DISMISS the appeal in part, holding that we do not have subject-matter jurisdiction over Mr. Ramos’s constitutional challenges.