Practitioner Notes: I write up this case only as a reminder that we as prosecutors are also responsible for the record. Had the Judge made an actual finding of fact in this case, we most likely would not be discussing it now. It is good practice when Judge’s make unclear findings of fact, or don’t make “actual” findings of fact, we remind them to do so for the record.
This case revolves around a two-level sentence enhancement due to “simple distribution” of CP. Appellant plead guilty to possession of CP pursuant to a pretrial agreement. The impetus for the two-level enhancement was that while using P2P software to find and download images, that same software also makes available to others the very same files.
Attack on the Enhancement: Appellant argued that the District Judge failed to find that he did “knowingly” distribute. At the sentencing hearing, the Judge stated that Appellant “…had a level of expertise and very well should have known that when you use a peer-to-peer file sharing program that means that you can get images from others and they can get them from you…”
Standard of Review: Questions of law regarding enhancements are reviewed de novo.
Law and Analysis: Recently, in a non-precedential summary order, “[w]e assume[d] without deciding that some degree of knowledge is required to support a distribution enhancement under U.S.S.G. § 2G2.2.” United States v. Farney, 513 Fed.Appx. 114, 116 (2d Cir.2013). In United States v. Reingold, we held that this enhancement applies when a defendant “ knowingly plac[es] child pornography files in a shared folder on a peer-to-peer file-sharing network … even if no one actually obtains an image from the folder.” 731 F.3d 204, 229 (2d Cir.2013) (emphasis added) (quoting Farney, 513 Fed.Appx. at 116). We further clarified that “it applies without regard to whether the defendant’s primary purpose in placing child pornography files in a file-sharing program was to receive or to distribute child pornography.” Id. at 230.
A later non-precedential summary order, relying on Reingold, concluded that there was indeed a knowledge requirement for § 2G2.2(b)(3)(F) to apply. United States v. Reed, 541 Fed.Appx. 112, ––––, 2013 WL 5976374, at *1 (2d Cir. Nov. 12, 2013).
We write today to clarify the meaning of the “knowledge” requirement indicated in Reingold. We hold that, although the defendant’s intent is irrelevant for a enhancement under § 2G2.2(b)(3)(F), a district court must find that a defendant knew that his use of P2P software would make child-pornography files accessible to other users. That error is not harmless.
Sentence Vacated and Remanded . It is important to note that in another circuit during this same month, an entirely different holding resulted (see Vallejos, below).