U.S. v. Layton, 07-4763.

Citation564 F.3d 330
Decision Date27 April 2009
Docket NumberNo. 07-4763.,07-4763.
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Terry LAYTON, Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (4th Circuit)

ARGUED: Thomas Norman Cochran, Office of the Federal Public Defender, Greensboro, North Carolina, for Appellant. Michael A. DeFranco, Office of the United States Attorney, Greensboro, North Carolina, for Appellee. ON BRIEF: Anna Mills Wagoner, United States Attorney, Greensboro, North Carolina, for Appellee.

Before TRAXLER and AGEE, Circuit Judges, and REBECCA BEACH SMITH, United States District Judge for the Eastern District of Virginia, sitting by designation.

Affirmed by published opinion. Judge SMITH wrote the opinion, in which Judge TRAXLER and Judge AGEE joined.

OPINION

SMITH, District Judge:

For possession of child pornography, defendant Terry Layton ("Layton") received a sentence of ninety-seven months, the lowest term of imprisonment recommended by the United States Sentencing Guidelines ("U.S.S.G." or "Guidelines"). Layton argues that the district court improperly applied various sentencing enhancements, including an enhancement for distribution of child pornography, and imposed an unreasonable sentence. For the following reasons, we affirm the district court.

I.

On February 17, 2006, agents from the Federal Bureau of Investigation ("FBI") searched Layton's home computer, after an informant claimed to have seen Layton viewing child pornography on the computer. Layton voluntarily gave an interview to the FBI agents, which was later documented in an official report. During the interview, Layton admitted that he had downloaded about ten to fifteen images of child pornography from the peer-to-peer file-sharing program WinMX. Using the same program, Layton also had created a shared folder called "My Music" that allowed others to download his files. The FBI agents reported that Layton admitted burning images of child pornography onto about a dozen compact discs and acknowledged there could be a few thousand images of child pornography on his computer. Layton also wrote a statement, witnessed by the FBI agents, in which he apologized for downloading and viewing child pornography.

A forensic examination of Layton's computer revealed over one thousand images of child pornography, many depicting prepubescent children and some containing sadomasochistic encounters. On October 31, 2006, Layton was indicted for possession of child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B) and (b)(2). Layton's presentence report ("PSR") calculated a criminal history category of I and a total offense level of thirty, resulting in an advisory Guidelines range of ninety-seven to one hundred twenty months imprisonment, the latter figure being capped at the statutory maximum. Before the sentencing hearing, Layton objected to various sentencing enhancements in the PSR. Layton conceded that all of the child pornography images were found on his computer, but asserted that he was not responsible for all of them being there.

On July 18, 2007, the district court held a sentencing hearing. The district judge received two psychological evaluations of Layton, the PSR, and the report of Layton's interview with the FBI agents. Moreover, the district judge heard testimony from Layton; his brother, Wayne Layton; and his friend, Jamie Griffin. All three claimed to have witnessed Jamie Cook, the FBI's informant, looking at child pornography on Layton's computer. Wayne Layton and Jamie Griffin also testified that they personally saw Layton viewing child pornography on Layton's computer. Indeed, Layton testified—just as he had told the FBI agents—that he downloaded about ten to fifteen images of child pornography, but he claimed to have accidentally downloaded these images. Although testifying that he knew how to download and upload files from the internet, Layton denied knowing how to download from file-sharing programs. Layton claimed he never told the FBI agents that he burned child pornography onto compact discs, and he denied admitting that there could be a few thousand images of child pornography on his computer. According to Layton, Jamie Cook was responsible for all the child pornography downloads and compact discs—a fact that Layton claims to have told the FBI agents, although it was not included in their report of the interview.

After hearing all testimony and receiving all exhibits, the district judge accepted his "obligation of determining what to do about the credibility in this case." (J.A. 186.)1 The district judge found that Layton did tell the FBI agents that he burned child pornography onto compact discs and that there could be a few thousand images of child pornography on his computer. After considering all the evidence and making factual findings, the district court overruled Layton's objections to the sentencing enhancements.

Next, the district judge stated that he was "not bound to follow the recommendation of the Sentencing Guidelines," recognizing that the district court was "unfettered, so long as it finds reasonable and appropriate factors to remove someone from Guidelines, if that should become appropriate under the circumstances." (J.A. 203-04.) The district judge specifically discussed the factors under 18 U.S.C. § 3553(a), as they applied to Layton. Finally, the district judge recognized his duty to impose a sentence "which is necessary, but not more than that which the Court finds is necessary[.]" (J.A. 206.) After weighing these considerations, the court sentenced Layton to ninety-seven months imprisonment. Judgment was entered on July 30, 2007, and Layton timely appealed.

II.

The Guidelines provide for enhancing a defendant's base offense level in certain circumstances, thus increasing the corresponding advisory sentencing range. For instance, when a defendant possesses child pornography depicting a prepubescent minor or a minor under twelve years old, U.S.S.G. § 2G2.2(b)(2) applies, resulting in a two-level increase. When a defendant possesses child pornography portraying "sadistic or masochistic conduct or other depictions of violence," U.S.S.G. § 2G2.2(b)(4) provides for a four-level increase. When the offense involves six hundred or more images of child pornography, U.S.S.G. § 2G2.2(b)(7)(D) applies, resulting in a five-level increase. Finally, when an offense involves certain distribution of child pornography, U.S.S.G. § 2G2.2(b)(3)(F) provides for a two-level increase.

In determining whether a district court properly applied the advisory Guidelines, including application of any sentencing enhancements, we review the district court's legal conclusions de novo and its factual findings for clear error. E.g., United States v. Osborne, 514 F.3d 377, 387 (4th Cir.2008). The district court's credibility determinations receive "great deference." United States v. Feurtado, 191 F.3d 420, 424 n. 2 (4th Cir.1999).

A.

The record shows that the district court properly applied the sentencing enhancements under U.S.S.G. § 2G2.2(b)(2), (4), and (7)(D) for the type and amount of child pornography that Layton possessed. Contrary to Layton's argument that the district judge relied only on specious statements from an informant, the record shows that the court actually relied on Layton's own incriminating statements to the FBI agents. Noting his "main concern is the statements [Layton] gave to the FBI," the district judge found that Layton told the FBI agents that there could be a few thousand images of child pornography on his computer. (J.A. 179.)

We give the district court's credibility determinations "great deference," Feurtado, 191 F.3d at 424 n. 2, and find no clear error in its factual finding, based on Layton's interview with, and the resulting report of, the FBI agents, that Layton admitted he had a few thousand images of child pornography on his computer. No party contests that some of these images depicted prepubescent children; children under twelve years old; and sadistic, masochistic, or violent behavior. Thus, we find that the sentencing enhancements for the type and amount of child pornography were properly applied.

B.

Because of the file-sharing program installed on Layton's computer, the district court applied a sentencing enhancement for distribution of child pornography. Under U.S.S.G. § 2G2.2(b)(3)(F), a defendant's offense level is increased by two levels for distribution of child pornography that is not to minors and is not for money or other things of value. The term "distribution" is broadly defined as "any act, including possession with intent to distribute, production, advertisement, and transportation, related to the transfer of material involving the sexual exploitation of a minor." U.S.S.G. § 2G2.2 cmt. n.1.

While this circuit has not addressed whether use of a peer-to-peer file-sharing program qualifies as distribution, other circuits have found that it does. The Seventh Circuit upheld a distribution enhancement where a defendant downloaded child pornography through a file-sharing program, since defendant's choice to "knowingly [make] his child pornography available for others to access and download" fell within the plain meaning of "distribution." United States v. Carani, 492 F.3d 867, 875-76 (7th Cir.2007). The Seventh Circuit found the passive nature of a file-sharing program "irrelevant." Id. at 876.

Similarly, the Eighth Circuit upheld a distribution enhancement for a defendant who downloaded child pornography from a file-sharing program and knew that others could download these files from his computer. See United States v. Griffin, 482 F.3d 1008, 1010-12 (8th Cir.2007). Likewise, the Eleventh Circuit affirmed an enhancement for distributing child pornography through a file-sharing program. See United States v. Mathenia, 409 F.3d 1289, 1290 (11th Cir.2005).

We concur with the Seventh, Eighth, and Eleventh Circuits and hold that use of a peer-to-peer...

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