United States v. Scott

Decision Date19 April 2016
Docket NumberNo. 15–30516.,15–30516.
Citation821 F.3d 562
PartiesUNITED STATES of America, Plaintiff–Appellee v. Jason Daniel SCOTT, Defendant–Appellant.
CourtU.S. Court of Appeals — Fifth Circuit

Camille Ann Domingue, Asst. U.S. Atty. (argued), John Luke Walker, Asst. U.S. Atty., U.S. Attorney's Office, Lafayette, LA, for PlaintiffAppellee.

Michael Reese Davis, Sr. (argued), Hymel Davis & Petersen, L.L.C., Baton Rouge, LA, for DefendantAppellant.

Appeal from the United States District Court for the Western District of Louisiana.

Before DAVIS, SMITH, and HIGGINSON, Circuit Judges.

STEPHEN A. HIGGINSON

, Circuit Judge:

Jason Daniel Scott pleaded guilty to one count of possessing child pornography and was sentenced to 108 months in prison and a lifetime term of supervised release. He appeals the district court's calculation of his Sentencing Guidelines range and the length and conditions of his supervised release. We VACATE and REMAND for resentencing.

I.

A grand jury indicted Scott on one count of possessing child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B)

and three counts of receiving child pornography in violation of 18 U.S.C. § 2252A(a)(2)(A). He originally pleaded guilty to one count of receiving child pornography and was sentenced to 235 months in prison and a ten-year term of supervised release. This conviction and sentence, though, were vacated after Scott filed a 28 U.S.C. § 2255 motion alleging, among other things, that he pleaded guilty because his counsel assured him that the district judge had told a mutual friend that Scott would get “hammered” if he went to trial, but that the judge would “take it easy on him” by sentencing him to only five years if Scott pleaded guilty.

Following this unusual course of events, Scott pleaded guilty again—this time to the single count of possessing child pornography. According to the new plea agreement's stipulated factual basis and unrebutted statements in the Presentence Investigation Report (PSR), agents conducting an investigation into the use of a computer program called LimeWire determined that Scott's computer “was actively downloading and possessing child pornography.” The agents were able to download three illicit videos from the “shared” file folder on Scott's computer associated with LimeWire, and through a forensic examination of Scott's computer confirmed that those videos were downloaded from the internet.

The record contains little information about LimeWire. The factual basis states that LimeWire “is used to trade files among members” and “regularly used to distribute child pornography.” The PSR adds that LimeWire is “peer-to-peer” software. For background purposes, we refer to other courts' explanations:

LimeWire is a file-sharing program that utilizes “peer-to-peer” (“P2P”) technology. By employing P2P technology, LimeWire permits its users to share digital files via an Internet-based network known as the “Gnutella network.” LimeWire users can share almost all files stored on their computers with other LimeWire users. When a LimeWire user wishes to locate digital files available through the network, she enters search criteria into the search function on LimeWire's user interface. LimeWire then scans the computers of other LimeWire users, to locate files that match the search criteria. The LimeWire user can download any files that LimeWire locates.

United States v. Vadnais, 667 F.3d 1206, 1208 (11th Cir.2012)

(quoting Arista Records LLC v. Lime Group LLC, 784 F.Supp.2d 398, 410–11 (S.D.N.Y.2011) ). The searchable files are located in “shared folder[s] ... created by the software on the computers of other users.” Id. And when a user downloads a file, a copy “is placed in a designated sharing folder on the requesting user's computer.” Id. (quoting Metro–Goldwyn–Mayer Studios, Inc. v. Grokster, Ltd., 545 U.S. 913, 921, 125 S.Ct. 2764, 162 L.Ed.2d 781 (2005) ). This placement in a shared folder is “automatic[ ] based on LimeWire's default (but optional) file-sharing setting which makes downloaded files “retrievable by other LimeWire users”:

LimeWire encourages its users to share files and its “default settings make all files that a user downloads through LimeWire available to other LimeWire users for download.” However, a user may change the default settings. [A] user could turn off sharing altogether, designate another folder with a different name to serve as the ‘Shared’ folder, [or] manually remove files from the ‘Shared’ folder (or whatever folder had been designated) and prevent them from being shared on an individual basis.”
Id. at 1208–09

(first alteration in original) (citation omitted). It appears that a user who does not share files can still download them—that is, LimeWire permits “freeloading.” Id. at 1209.

Scott informed agents that he used LimeWire and Bit Torrent, which the PSR identifies as file-sharing programs. Scott also admitted using “search terms ... consistent with child pornography videos/images” on those two programs. But the record does not contain an admission or other direct evidence that Scott knew he was making child pornography available to others or was aware of LimeWire's default file-sharing setting.

In calculating Scott's Sentencing Guidelines range, however, the PSR applied a five-level enhancement under U.S.S.G. § 2G2.2(b)(3)(B)

for [d]istribution [of child pornography] for the receipt, or expectation of receipt, of a thing of value, but not for pecuniary gain.” Scott objected and suggested that the two-level enhancement under § 2G2.2(b)(3)(F) for [d]istribution other than distribution described in subdivisions (A) through (E) applied instead. The addendum to the PSR disagreed, explaining that Scott “had the file sharing function of [LimeWire] turned on ... allowing him to not only receive ... but to ‘distribute’ child pornography,” and noting that § 2G2.2(b)(3)(B) applies when a defendant trades child pornography in exchange for more child pornography. Scott submitted the same objection to the district court, pointing out that he was convicted of possession, not distribution, and arguing that there was no evidence that he knew he was making pornography available to others or that he was a sophisticated computer user who might be presumed cognizant of his sharing. The district court overruled the objection in a written memorandum, citing this court's decision in United States v. Groce, 784 F.3d 291 (5th Cir.2015), along with the conclusion that “Scott, by using Limewire and other peer-to-peer file sharing programs, agreed to share the child pornography he gathered.”

The district court then sentenced Scott to 108 months in prison.1 It also imposed a lifetime term of supervised release with special conditions including absolute bans on (1) having “access to any computer that is capable of internet access” or (2) having “unsupervised contact with anyone under the age of 18,” and requirements that he (3) register as a sex offender and (4) “consent to installation of monitoring software on any computer to which [he] has access.” Scott timely appealed his sentence.

II.

We review criminal sentences—including conditions of supervised release—using a two-step abuse-of-discretion standard. United States v. Richardson, 676 F.3d 491, 508 (5th Cir.2012)

; United States v. Rodriguez, 558 F.3d 408, 411–12 (5th Cir.2009). First, we ensure that the district judge committed no significant procedural error such as improperly calculating the Sentencing Guidelines range. Richardson, 676 F.3d at 508. Second, we review the substantive reasonableness of the sentence for abuse of discretion. Id. We review the district court's interpretation of the Guidelines de novo, and its factual findings for clear error. Id.

III.

Scott first argues that the district court committed procedural error by applying an incorrect sentencing enhancement. A five-level sentencing enhancement applies to § 2252A(a)(5)(B)

convictions if the offense involved [d]istribution [of child pornography] for the receipt, or expectation of receipt, of a thing of value, but not for pecuniary gain.” U.S.S.G. § 2G2.2(b)(3)(B). A two-level enhancement applies for [d]istribution other than distribution described in subdivisions (A) through (E).” Id. § 2G2.2(b)(3)(F). As with all sentencing enhancements, the prosecution has the burden of proving § 2G2.2(b)(3)(B)'s applicability by a preponderance of the evidence. See

United States v. Juarez, 626 F.3d 246, 251 (5th Cir.2010).

It is undisputed 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. Baker, 742 F.3d 618, 620 (5th Cir.2014) (alteration in original) (quoting United States v. Dodd, 598 F.3d 449, 452–53 (8th Cir.2010) ); see also

United States v. Richardson, 713 F.3d 232, 236 (5th Cir.2013). But the parties contest whether Scott distributed child pornography “for the receipt, or expectation of receipt, of a thing of value” so as to warrant the five-level enhancement.

The key Fifth Circuit case interpreting § 2G2.2(b)(3)(B)

in this context is Groce, in which the defendant pleaded guilty to receiving child pornography using a peer-to-peer file sharing program. 784 F.3d at 293–94. This court rejected Groce's argument that § 2G2.2(b)(3)(B) should not apply because he didn't expect to receive anything for sharing files, explaining:

Generally, when a defendant knowingly uses peer-to-peer file sharing software, however, he engages in the kind of distribution contemplated by § 2G2.2(b)(3)(B)

. A peer-to-peer file sharing program “lets users exchange digital files through a network of linked computers.” By using this software as Groce has, the user agrees to distribute the child pornography on his computer

in exchange for additional child pornography. This is precisely the kind of exchange contemplated by § 2G2.2(b)(3)(B)

.

Id. at 294–95

(emphasis added) (...

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