U.S.A v. Durham
| Decision Date | 26 August 2010 |
| Docket Number | No. 09-2951.,09-2951. |
| Citation | 618 F.3d 921 |
| Parties | UNITED STATES of America, Plaintiff-Appellee,v.Michael Shane DURHAM, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Angela Lorene Pitts, AFPD, argued, Fayetteville, AR, for appellant.
Kyra E. Jenner, AUSA, argued, Fort Smith, AR, for appellee.
Before BYE, BEAM, and GRUENDER, Circuit Judges.
Michael Durham appeals the sentence of 151 months' imprisonment he received from the district court after pleading guilty to knowingly receiving child pornography in violation of 18 U.S.C. § 2252(a)(2). Durham contends the district court erred by applying a two-level enhancement for distributing child pornography pursuant to United States Sentencing Guidelines Manual ( U.S.S.G.) § 2G2.2(b)(3)(F). He also challenges certain conditions of supervised release imposed by the district court. We affirm in part and reverse in part.
Michael Durham was charged in an eight-count indictment with, among other counts, knowingly receiving child pornography transported through interstate commerce by a computer in violation of 18 U.S.C. § 2252(a)(2). Pursuant to a plea agreement, Durham pleaded guilty to Count I and the remaining seven counts were dismissed at sentencing.
The Presentence Investigation Report (“PSR”) placed Durham in Criminal History Category I and recommended a base offense level of 22. The PSR also recommended several enhancements, including a two-level enhancement for distributing child pornography pursuant to U.S.S.G. § 2G2.2(b)(3)(F), to which Durham objected. The enhancements resulted in a total offense level of 34, after applying a three-level reduction for acceptance of responsibility.
At the sentencing hearing, the government called Detective Al Barrios, a forensic examiner with the Springdale Police Department, to testify regarding the contents of Durham's seized computer. Barrios described how Detective Mike Parks with the Fayetteville Police Department initially found Durham's IP address offering to participate in the distribution of child pornography files on Limewire, a peer-to-peer file-sharing program. In his investigation, Parks did not actually download any of the files associated with Durham's IP address, but he believed the file names were consistent with child pornography.
The officers determined the computer associated with the IP address in Parks's investigation was located at Durham's residence in Springdale, and they subsequently obtained a warrant to search the computer. After the officers executed the search warrant at Durham's residence, he admitted to using Limewire to download music and child pornography files. Barrios testified Durham's default Limewire settings had been changed to save and share files from different folders than would have automatically been set by the program. Barrios believed this indicated an action by Durham to change these settings, despite the multiple users on Durham's family computer.
Barrios also testified that files downloaded by Durham were available for others to download through Limewire, as demonstrated by logs showing the available files obtained by Parks in his investigation. However, upon executing the search warrant, the officers discovered no child pornography files contained in Durham's shared folder. Barrios indicated the files would have been in the shared folder at the time Parks conducted his investigation because Parks was able to view the file names available for download before they were removed. On cross-examination, Barrios conceded the only proof available demonstrated child pornography files were made available for upload, but there was no evidence of any files actually being uploaded from Durham's computer.
Following Barrios's testimony, Durham presented testimony from his brother, Casey Durham. Casey indicated he installed Limewire on Durham's computer with Durham's daughter and showed her how to use the program to download music. Casey also testified Durham was not present when Limewire was installed, nor was he knowledgeable about the program. According to Casey, he set up the program according to the default settings, which automatically enables file-sharing with other Limewire users.
After hearing the parties' proffered testimony and arguments, the district court concluded there was no evidence of possession with intent to distribute, but it held the distribution enhancement nonetheless applied due to Durham's use of Limewire. Based on the testimony, the court determined Durham was “very knowledgeable” about Limewire's downloading capabilities, which, in turn, lead the court to conclude he was also knowledgeable about Limewire's uploading capabilities.
The court acknowledged there was no statement from Durham demonstrating he knew others could access his materials; however, it found the lack of this direct evidence was not dispositive. Under the preponderance of the evidence standard, the court concluded the two-level enhancement for distribution applied. Durham's counsel objected and instead argued he should have received a two-level reduction for not intending to traffic in, or distribute, child pornography under U.S.S.G. § 2G2.2(b)(1). In response, the court held that provision did not apply because Durham utilized Limewire, rather than receiving child pornography through another program that did not feature automatic file-sharing.
Based on the court's ruling, the applicable Guidelines range was 151-188 months. The court ultimately imposed a sentence of 151 months' imprisonment and 10 years of supervised release. It then imposed seven special conditions of supervised release, including a condition allowing the probation office to track Durham's whereabouts through any means the office deems acceptable, a condition placing limitations on Durham's internet access, and a condition limiting Durham's contact with minors. Durham's counsel only objected to the tracking condition. He appeals the court's imposition of these conditions, as well as its application of the distribution enhancement.
“We review the district court's sentencing decision for an abuse of discretion, and our review is limited to determining whether the sentence is unreasonable.” United States v. Blankenship, 552 F.3d 703, 704 (8th Cir.2009). We first ensure the district court committed no significant procedural error, such as improperly calculating the Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence. United States v. Gonzalez, 573 F.3d 600, 605 (8th Cir.2009). We review the district court's application of the Guidelines de novo, and its factual findings for clear error. Blankenship, 552 F.3d at 704.
Durham first contends the district court committed procedural error by applying a two-level enhancement for distribution of child pornography pursuant to U.S.S.G. § 2G2.2(b)(3)(F), and alternatively it should have imposed a two-level reduction under § 2G2.2(b)(1). Unlike prior cases considered by this court, Durham asserts he provided no admission evincing his knowledge that he was distributing child pornography over the file-sharing network. In fact, he argues, there was no evidence demonstrating any actual uploads from his computer to warrant the distribution enhancement; the only evidence showed a listing of his downloaded files was available at one point for others to access via Limewire, notwithstanding the fact that no child pornography was discovered in his shared folder upon execution of the search warrant. The use of Limewire in itself, which automatically enables file-sharing upon installation, does not provide a sufficient basis for the distribution enhancement, according to Durham. This is particularly true in this case, he claims, where the district court explicitly found no evidence of his intent to distribute, advertise, or transport child pornography.
Under Application note 1 to § 2G2.2, “distribution” is defined as follows:
“Distribution” means 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(b)(3)(F) cmt. n. 1.
Before discussing whether the district court properly applied the distribution enhancement in the instant matter, we begin with a review of our pertinent cases examining the application of such enhancements in peer-to-peer network cases. In United States v. Griffin, 482 F.3d 1008, 1011 (8th Cir.2007), this court first considered whether the expectation of receipt of child pornography through a file-sharing program constituted a “thing of value, but not for pecuniary gain” pursuant to a separate five-level distribution enhancement provided under U.S.S.G. § 2G2.2(b)(2)(B). Griffin held such bartering of child pornography over a file-sharing network was sufficient to meet the “thing of value” enhancement because “these networks exist-as the name ‘file-sharing’ suggests-for users to share, swap, barter, or trade files between one another.” Id. at 1012-13. Accordingly, the defendant in Griffin, who admitted he downloaded child pornography and knew other users of the file-sharing program could download files from him, was appropriately sentenced based on the five-level “thing of value” enhancement. Id. at 1013.
After Griffin, other circuits that had not yet addressed the issue similarly concluded the use of a file-sharing program to download child pornography was a sufficient basis to impose a distribution enhancement under the Guidelines. United States v. Layton, 564 F.3d 330, 335 (...
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