Case Information
*1 Before REAVLEY, DAVIS, and HIGGINSON, Circuit Judges.
HIGGINSON, Circuit Judge:
Defendant-Appellant Robert Baker pleaded guilty to receiving material involving the sexual exploitation of a minor. At sentencing, the district court imposed a two-level enhancement under U.S.S.G. § 2G2.2(b)(3)(F) for distribution of child pornography through Baker’s use of the file-sharing program Frostwire. This appeal presents the question of whether the district court properly applied the enhancement absent evidence that Baker knew Frostwire enabled other users to access the child pornography he downloaded. We find § 2G2.2(b)(3)(F) does not contain a scienter requirement and AFFIRM the district court’s imposition of the two-level enhancement.
FACTUAL BACKGROUND
Robert Baker installed Frostwire, a peer-to-peer file-sharing program, on his computer and used it to download eight video files containing child pornography. Peer-to-peer file-sharing programs like Frostwire allow groups of computers using the same file-sharing network to connect directly with each other and to share files among one another’s computer systems. An Immigration and Customs Enforcement (“ICE”) agent used Frostwire to twice download a video of child pornography from an IP address subsequently identified as Baker’s. When confronted, Baker pleaded guilty without a plea agreement to one count of receiving visual depictions of a minor engaged in sexually explicit conduct.
The probation officer determined that Baker’s total offense level was thirty-seven, which included his base offense level of twenty-two pursuant to U.S.S.G. § 2G2.2(a)(2) and a five-level increase for distribution of child pornography for the receipt of a thing of value under U.S.S.G. § 2G2.2(b)(3)(B). Baker’s advisory guidelines range was set at 210 to 240 months imprisonment, given his criminal history category of I.
The parties filed responses and objections to the presentence report (“PSR”). The government indicated that it was unclear whether the five-level increase should apply absent evidence that Baker possessed specialized knowledge of file-sharing software and “understood that Frostwire shared unless he affirmatively took steps to prevent the sharing.” The government maintained, however, that Baker should receive the two-level increase under U.S.S.G. § 2G2.2(b)(3)(F) because Baker used Frostwire to seek out child pornography, maintained the child pornography in a shared directory, did not attempt to disable Frostwire’s default sharing function, and was not surprised that the ICE agent was able to download child pornography from his computer. Baker objected to both the five-level increase and the government’s alternate two-level increase under § 2G2.2(b)(3)(F), arguing that neither enhancement applied as he did not know that others could download files from his computer under Frostwire’s “default settings.” Baker also argued that he was entitled to a two-level decrease under § 2G2.2(b)(1) because his conduct was limited to the receipt of child pornography.
The district court rejected the five-level increase under § 2G2.2(b)(3)(B) on the ground that the defendant could not expect to receive a thing of value— access to a broader library of child pornography—in exchange for his distribution of child pornography if he did not know he was sharing child pornography through his use of Frostwire. The district court stated:
In order to make the five-level increase, you would have to assume that the defendant understands the system well enough to know that if he uses file sharing that others can obtain the files he has. . . . And there’s no indication here that he had that knowledge or was skilled enough to have that knowledge.
The district court did, however, impose the two-level increase under § 2G2.2(b)(3)(F). Baker unsuccessfully renewed his objection to the two-level increase, arguing that if he did not know how the file-sharing program worked he could not have knowingly distributed pornography, as he maintained was required for the § 2G2.2(b)(3)(F) enhancement.
Applying the two-level increase, the district court found a total offense level of thirty-four and advisory guidelines range of 151 to 188 months in prison. The court downwardly departed from the range and sentenced Baker to eighty months in prison, citing his serious health condition.
Baker timely appealed his sentence. On appeal, he argues that the district court erred when it increased his sentence two levels pursuant to § 2G2.2(b)(3)(F) because the guideline requires that the defendant knowingly distribute child pornography other than to minors or for receipt of a thing of value. As Baker contends that he was unaware that others could download child pornography from his computer through Frostwire, he argues that he should not have received the two-level enhancement. Moreover, because his conduct was limited to receipt of child pornography, Baker maintains he should receive a two-level decrease under § 2G2.2(b)(1).
The government responds that no error occurred as § 2G2.2(b)(3)(F) does not require a particular mens rea and, even if it does, Baker had sufficient knowledge of Frostwire’s capabilities to justify the two-level enhancement. The government further maintains that, even if an error did occur, the error was harmless given the district court’s downward departure in sentencing.
STANDARD OF REVIEW
We review the district court’s interpretation and application of the
sentencing guidelines
de novo
and its findings of fact for clear error.
United
States v. Cisneros-Gutierrez
,
DISCUSSION
Section 2G2.2(b)(3)(F) provides for a two-level increase “[i]f the offense involved [] [d]istribution” of child pornography where the distribution is not to minors or for something of value. The 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. Accordingly, distribution includes posting material involving the sexual exploitation of a minor on a website for public viewing but does not include the mere solicitation of such material by a defendant.
U.S.S.G. § 2G2.2 cmt. n.1.
Our sister circuits agree that “distribution as defined in § 2G2.2 includes
operating a file sharing program that enables other participating users to
access and download files [then automatically] placed in a shared folder”
available to other users.
United States v. Dodd,
Our court has not addressed whether § 2G2.2(b)(3)(F) contains such a
scienter requirement in any controlling opinions, though the unpublished case
of
United States v. Nielson
,
A defendant may receive a two-level increase in offense level if his offense involved distribution. . . . The enhancement was thus applicable in this case if the government proved by a preponderance of the evidence that a torrent containing child pornography was uploaded from Nielson's computer to the file- sharing network.
Nielson
,
First, a careful examination of the guideline’s plain language illustrates
that § 2G2.2(b)(3)(F) does not contain a scienter requirement. Ordinary rules
of statutory construction apply when interpreting sentencing guidelines.
United States v. Serfass
,
The language surrounding the operative definition reinforces this plain-
language reading of § 2G2.2(b)(3)(F). In the same commentary that defines
“distribution” without requiring an express
mens rea
, the Sentencing
Commission defined “distribution to a minor” as the “
knowing
distribution to
an individual who is a minor at the time of offense.” U.S.S.G. § 2G2.2 cmt. n.1
(emphasis added). The drafters’ explicit use of a scienter requirement in this
instance indicates that its omission from the definition of “distribution” was
not an oversight in need of judicial insertion.
See United States v. Ray,
704
F.3d 1307, 1313 (10th Cir. 2013) (“Truly, the drafters of the commentary to §
2G2.2 knew how to include a scienter requirement when they wanted to.”);
Serfass
, 684 F.3d at 552 (“The inclusion of a knowledge requirement in one
portion of the guideline confirms that its omission from another portion of the
same guideline was intentional.”);
United States v. Singleton
,
Under our precedent, “the plain language of the guideline controls
when it (1) is not ambiguous and (2) produces a result that is not absurd.”
Serfass
,
Neither the general presumption against strict-liability crimes nor the
rule of lenity applies here. While crimes are generally presumed to require
mens rea
,
Staples v. United States
,
Similarly, we apply the rule of lenity only to guidelines provisions that
are ambiguous.
See United States v. Bustillos-Pena,
We therefore find that the plain language of § 2G2.2(b)(3)(F) does not
contain a scienter requirement and is not ambiguous. This interpretation is
controlling. We acknowledge that some of our sister circuits have held that
§ 2G2.2(b)(3)(F) contains a scienter requirement.
Compare United States v.
Ray,
Since we hold that § 2G2.2(b)(3)(F) does not contain a scienter requirement, the district court did not err in applying the enhancement even absent evidence of Baker’s knowledge. [3]
As the district court did not err when it increased Baker’s offense level by two levels pursuant to § 2G2.2(b)(3)(F), it likewise did not err when it failed to decrease Baker’s offense level by two levels under § 2G2.2(b)(1). Section 2G2.2(b)(1) applies only when the “the defendant’s conduct was limited to the receipt or solicitation of material involving the sexual exploitation of a minor.” Baker’s conduct was not limited to the receipt of child pornography but involved distribution. As a result, § 2G2.2(b)(1) is inapplicable.
CONCLUSION
For the reasons set forth above, we AFFIRM Baker’s sentence.
issue of whether the use of a file-sharing program, without more, can support the award of
distribution points under section 2G2.2(b).”). Finally, we observe that when courts insert
scienter, it is unclear how knowledge would be proven as to the peer-to-peer capabilities of
file-sharing software.
Cf. Robinson
,
[3] In light of this holding, we need not reach the question of whether Baker knew in fact that he was sharing child pornography through his use of Frostwire. The district court found that there was “no indication here that [Baker] had that knowledge or was skilled enough to have that knowledge.” And the government conceded that “Baker did not express a familiarity with file-sharing software generally or indicate in his interviews that he knew he was specifically sharing files and that he understood Frostwire permitted sharing.” Yet the government elsewhere cites Baker’s lack of surprise that the agent was able to download child pornography from his computer and the sophisticated search terms employed to find child pornography as evidence of Baker’s purported knowledge of Frostwire’s capabilities. We do not decide this issue.
Notes
[1] It is notable that this court upheld Nielson’s sentencing enhancement even though
Nielson specifically claimed in an unsworn statement that he changed the default settings to
prevent his child pornography torrents from being uploaded.
Nielson
,
[2] The Sixth and Eighth Circuits have held that use of file-sharing software creates a
“strong presumption” that the users understand others can access their files, such that the
government does not need to prove knowledge to apply the enhancement.
See United States
v. Conner
,