United States v. Baker, 12-10834

• Decision Date: 12 February 2014
• Docket Number: No. 12-10834,12-10834
• Parties: UNITED STATES OF AMERICA, Plaintiff - Appellee v. ROBERT L. BAKER, Defendant - Appellant
• Court: U.S. Court of Appeals — Fifth Circuit

UNITED STATES OF AMERICA, Plaintiff - Appellee v. ROBERT L. BAKER, Defendant - Appellant

No. 12-10834

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

Filed: February 12, 2014

Appeal from the United States District Court

for the Northern District of Texas

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 alternatetwo-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 downloadchild 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, 517 F.3d 751, 764 (5th Cir. 2008).

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, 598 F.3d 449, 452-53 (8th Cir.2010). It is likewise generally accepted both in this circuit and others that the five-level enhancement under § 2G2.2b(3)(B) applies only where the defendant knew that he was distributing child pornography in exchange for a thing of value through his use of file-sharing software. See, e.g., United States v. Vadnais, 667 F.3d 1206, 1209 (11th Cir. 2012) ("[W]e have explicitly rejected any suggestion we automatically apply a [§ 2G2.2b(3)(B)] enhancement based merely on a defendant's use of a file-sharing program.") (quoting United States v. Durham, 618 F.3d 921, 931 (8th Cir. 2010)); United States v. Desadier, 495 F. App'x 501, 503 (5th Cir. 2012) (unpublished); United States v. Onken, 440 F. App'x 304, 305 (5th Cir. 2011) (unpublished); United States v. Moore, 328 F. App'x 308, 309 (5th Cir. 2009) (unpublished). Logically, the defendant could not receive or anticipate receiving a thing of value in exchange for his distribution unless cognizant of his sharing. The unsettled question, which has divided our sister circuits, is whether the defendant must know of the file-sharing program's capabilities in order to incur the two-level enhancement under § 2G2.2(b)(3)(F) for distribution of child pornography not to a minor nor for a thing of value.

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, 455 F. App'x 526 (5th Cir. 2011), is directly on point. There, this court held that the enhancement applied if the defendant's computer supplied child pornography through the use of file-sharing software, regardless of the defendant's mental state:

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, 455 F. App'x at 527.¹ Nielson reinforced this court's prior statement that § 2G2.2(b)(3)(F) applied even if the defendant "distributed pornographic images by accident." United States v. Sistrunk, 37 F. App'x 88, 2002 WL 971623 at *1 (5th Cir. 2002) (unpublished). While these unpublished decisions are not binding on our court, we elaborate below why we find them persuasive, see United States v. Sauseda, 596 F.3d 279, 282 (5th Cir. 2010), and hold that imposition of a two-level enhancement under § 2G2.2(b)(3)(F) does not require scienter.

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, 684 F.3d 548, 551 (5th Cir. 2012). The commentary accompanying § 2G2.2(b)(3)(F) defines "distribution" as "any act, including . . . related to the transfer of material involving the sexual exploitation of a minor." U.S.S.G. § 2G2.2 cmt. n.1 (emphasis added). "Use of the word 'any' to modify 'act' signals that the phrase should be construed broadly," rather...