August 21, 2019

Tenth Circuit: Defendant Needs No Knowledge of Distribution Capability of File Sharing Program He is Using to View Child Pornography for Sentence Enhancement to Apply

The Tenth Circuit issued its opinion in United States v. Ray on Friday, February 1, 2013. This is an amended opinion after the panel granted panel rehearing in part. En banc consideration was denied. The court had previously published its opinion in this case on November 6, 2012 and the following summary is from Legal Connection’s November 8th post as the holding of the case has not changed.

In August 2011, Defendant Ray pleaded guilty to the knowing, intentional, and unlawful receipt of child pornography. In its presentence investigation report (PSR), the probation office assigned defendant, among other sentence enhancements, a two-level enhancement because defendant’s offense involved the distribution of child pornography. Defendant objected to the enhancement on the ground that the government had offered no evidence that defendant had distributed any child pornography or that any of the files downloaded had later been shared with another computer. Defendant further argued that even if such sharing had occurred, such sharing had been unintentional.

This appeal presents the question whether the district court could properly apply the two-level sentencing enhancement for the distribution of child pornography when the record indicated only that defendant used a peer-to-peer file-sharing software and that its sharing function was enabled, but not that defendant actually knew his software was capable of sharing files.

The Tenth Circuit held that § 2G2.2(b)(3)(F) does not require that a defendant know about the distribution capability of the program he is using to view child pornography. The Court noted it had repeatedly held that when the plain language of a guideline, in contrast to a criminal statute, does not include a mens rea element, the court should not interpret the guideline as containing such an element. The sentence enhancement was therefore properly applied.

The Tenth Circuit also rejected defendant’s claims that the district court unconstitutionally made findings for sentencing enhancements under a preponderance-of-the-evidence standard, that the court erred procedurally at sentencing, and that the sentence was substantively unreasonable. Accordingly, defendant’s sentence was AFFIRMED.