United States v. Ray

• Decision Date: 06 November 2012
• Docket Number: No. 11–3383.,11–3383.
• Citation: 699 F.3d 1172
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Austin Alan RAY, Defendant–Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

699 F.3d 1172

UNITED STATES of America, Plaintiff–Appellee,

v.Austin Alan RAY, Defendant–Appellant.

No. 11–3383.

United States Court of Appeals,Tenth Circuit.

Nov. 6, 2012.

Background: Defendant was convicted and sentenced in the United States District Court for the District of Kansas for receiving material involving the sexual exploitation of a minor, and he appealed.

Holdings: The Court of Appeals, Hartz, Circuit Judge, held that:

(1) guidelines enhancement applicable if crime “involved [d]istribution” did not require that defendant know about the distribution capability of the network file-sharing program he was using to view child pornography, and

(2) sentence of 102 months' imprisonment was not substantively unreasonable.

Affirmed.Timothy J. Henry, Assistant Federal Public Defender, Federal Public Defender Office, Wichita, KS, for Defendant–Appellant.

James A. Brown, Assistant United States Attorney, (Barry R. Grissom, United States Attorney, with him on the brief), District of Kansas, Topeka, KS, for Plaintiff–Appellee.

Before LUCERO, MURPHY, and HARTZ, Circuit Judges.

HARTZ, Circuit Judge.

After Defendant Austin Alan Ray was arrested for downloading child pornography using peer-to-peer file-sharing software, he pleaded guilty in federal district court to receiving material involving the sexual exploitation of a minor. This appeal presents the question whether the district court could properly apply a two-level sentencing enhancement for the distribution of child pornography under USSG § 2G2.2(b)(3)(F) when the record indicated only that Defendant used the 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. We hold that the guideline was properly applied. We also reject 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, we affirm Defendant's sentence.

I. BACKGROUND

In November 2010, acting on a tip from federal authorities in Michigan, special agents from United States Immigration and Customs Enforcement (ICE) executed a search warrant at the home of Defendant and his parents in Kingman, Kansas. The source of the tip, Gerald Benedict, had told authorities that email correspondence from Defendant indicated that he might be molesting a child. Benedict's tip also led authorities to believe that Defendant may have been sending Benedict child pornography.

When the ICE agents arrived at Defendant's house, accompanied by local police, they found Defendant and his mother there. They also found two computers. One was a desktop computer in the dining room. Defendant admitted to being the owner. When asked whether any child pornography was stored on it, Defendant responded, “[I]t's all gone,” and explained that he had deleted all the child pornography because the images were “sick.” R., Vol. 2 at 120 (internal quotation marks omitted). He said that for about a year he had used a peer-to-peer file-sharing program called Shareaza to search for and download child pornography using terms such as “boy” and “kid sex.” ¹Id. (internal quotation marks omitted). Defendant admitted that he was familiar with how to use computers and the Internet but said he was not a “ ‘computer genius.’ ” Id. He acknowledged knowing that it is illegal to download and view child pornography.

The second computer, a laptop in the room of Defendant's brother, was registered in the brother's name, but Defendant admitted that he had borrowed it for use earlier in the year. Defendant's brother, who had arrived home in the middle of the search, corroborated Defendant's statement.

The government's forensic investigation of the desktop computer uncovered some 2,430 images of children younger than 12 engaged in a variety of sexual acts. The forensic investigator determined from the computer's registry that the images had last been accessed on October 30, 2010, only four days before the ICE search. The “share” setting of the Shareaza file-sharing program on the computer was activated. The laptop was found to contain 34 images and one movie file of child pornography similar to the files found on the desktop; the dates of creation for these items matched the time frame in which Defendant had admittedly borrowed the laptop.

Further investigation cleared Defendant of some of the wrongdoing suggested by Benedict, the instigator of the investigation. First, although Defendant had indeed sent Benedict several emails detailing his purported commission of sex acts with a particular child, Defendant said that these interactions had been purely imaginary; and an interview of the child confirmed that statement. Second, officers determined that Defendant had not emailed child pornography to Benedict.

In August 2011 Defendant pleaded guilty in the United States District Court for the District of Kansas to the knowing, intentional, and unlawful receipt of child pornography. See18 U.S.C. § 2252(a)(2). Although the indictment charged the distribution of child pornography as well as its receipt, Defendant pleaded to receipt only.

In its presentence investigation report (PSR), the probation office concluded that the Sentencing Guidelines assigned Defendant (1) a base offense level of 22, seeUSSG § 2G2.2(a)(2) (2011); (2) a two-level enhancement because the material on Defendant's computer involved prepubescent minors, see id.§ 2G2.2(b)(2); (3) a four-level enhancement because the material portrayed sadistic or masochistic conduct or other depictions of violence, see id.§ 2G2.2(b)(4); (4) a two-level enhancement for Defendant's use of a computer, see id.§ 2G2.2(b)(6); (5) a five-level enhancement because Defendant had received more than 600 images, see id.§ 2G2.2(b)(7)(D); and, most important for this appeal, (6) a two-level enhancement because Defendant's offense involved the distribution of child pornography, see id.§ 2G2.2(b)(3)(F). The PSR also recommended a three-level downward adjustment under § 3E1.1 for Defendant's acceptance of responsibility and his timely guilty plea, yielding a total offense level of 34. Given Defendant's criminal-history category of I, the Guidelines sentencing range was 151 to 188 months' imprisonment.

In a written response to the PSR, Defendant objected to the two-level enhancement for distribution under § 2G2.2(b)(3)(F) on the ground that the government had offered no evidence that Defendant had distributed any child pornography or that any of the files downloaded through Shareaza had later been shared with another computer. Defendant further argued that even if such sharing had occurred, such sharing had been unintentional. Instead of the PSR's recommended imposition of a two-level distribution enhancement, Defendant urged a two-level reduction under § 2G2.2(b)(1) because his conduct “was limited to the receipt or solicitation” of child pornography and involved no intent to distribute. USSG § 2G2.2(b)(1).

At sentencing, Defendant renewed this objection. The government conceded that it could make no direct showing that the files on Defendant's computer had been shared with other computers, and it appeared to concede that it could not prove that the activation of the “share” function on Defendant's version of Shareaza was the product of his volition rather than simply a default setting. Nevertheless, the government urged that the use of a peer-to-peer file-sharing program constitutes “generic distribution” that triggers the two-level § 2G2.2(b)(3)(F) enhancement as a matter of law. R., Vol. 3 at 59. Defense counsel did not dispute that Defendant had used a peer-to-peer file-sharing network to receive illegal files; rather, he argued that to establish distribution, the government bore the burden of introducing concrete evidence that Defendant's computer had shared such files with at least one other computer.

The district court overruled Defendant's objection on this and several other points. It explained:

I'm going to find ... the only factual issue dispute that's actually raised here is the issue of distribution. And the defendant does not challenge—and, in fact, he used the ... file-sharing programs. I'm, of course, familiar with this area of law, and I think that use of those programs is legally enough to support the guideline enhancement for distribution that's found here. I don't think more is required. I don't think the law requires more.

So, again, that's a legal conclusion. I think that's the status of the law in this circuit. I don't find that there are any other factual challenges that the Government needs to put evidence on, given that legal conclusion.

Id. at 72. The court thus accepted as correct the PSR's calculation of an offense level of 34 and a criminal-history category of I, which produced a Guidelines sentencing range of 151 to 188 months' imprisonment.

After hearing the government's request for a sentence within the Guidelines range and defense counsel's request for the statutory minimum of five years, the district court imposed a below-Guidelines sentence of 102 months' imprisonment followed by a seven-year term of supervised release. In explaining its decision, the court said that it balanced a number of considerations: the brutality and quantity of the images in Defendant's possession, the need for deference to Congress's penal determinations, the Kingman community's expressions of support for Defendant, and Defendant's personal characteristics, including his youth and his professed desire for rehabilitation.

Defendant's briefs on appeal argue that the district court committed the following errors in sentencing him: (1) it inappropriately applied the two-level enhancement for distribution under § 2G2.2(b)(3)(F) and should have applied the two-level reduction under § 2G2.2(b)(1) for...