FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                November 6, 2012
                                      PUBLISH                  Elisabeth A. Shumaker
                                                                   Clerk of Court
                   UNITED STATES COURT OF APPEALS

                                TENTH CIRCUIT



 UNITED STATES OF AMERICA,

              Plaintiff - Appellee,
       v.                                                No. 11-3383
 AUSTIN ALAN RAY,

              Defendant - Appellant.


         APPEAL FROM THE UNITED STATES DISTRICT COURT
                  FOR THE DISTRICT OF KANSAS
                  (D.C. NO. 6:11-CR-10029-EFM-1)


Timothy J. Henry, Assistant Federal Public Defender, Federal Public Defender
Office, Wichita, Kansas, 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, Kansas, 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

                                        -2-
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.” 1 

omitted). Defendant admitted that he was familiar with how to use

computers and the Internet but said he was not a “‘computer genius.’” 

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


      1
       In an unpublished opinion involving a file-sharing program called
Limewire, we explained that the program “allows users to search for, download,
and share various types of files, including videos and pictures, over the Internet
with other Limewire users.” United States v. Espinoza, 403 F. App’x 315, 316
(10th Cir. 2010) (unpublished). The record in this case suggests that Shareaza
operates similarly.

                                        -3-
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. See 18 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, see USSG § 2G2.2(a)(2) (2011); (2) a two-level enhancement because

the material on Defendant’s computer involved prepubescent minors, see 

(3) a four-level enhancement because the material portrayed

sadistic or masochistic conduct or other depictions of violence, see 

a two-level enhancement for Defendant’s use of a computer,

see 

a five-level enhancement because Defendant had

received more than 600 images, see 

most important for

this appeal, (6) a two-level enhancement because Defendant’s offense involved

the distribution of child pornography, see 

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).

                                         -5-
      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.


                                          -6-


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 mere receipt or solicitation; (2) it

violated his Fifth and Sixth Amendment rights to due process and a jury trial by

enhancing his Guidelines sentence based on judicial findings made by a

preponderance of the evidence; (3) it flouted the commands of 18 U.S.C. § 3553

by (a) giving more than the permissible level of deference to the Guidelines, (b)

refusing to consider Defendant’s history as a victim of sexual abuse, and (c)

                                         -7-
erroneously finding that Defendant had deleted his child pornography files only in

anticipation of imminent discovery by authorities; and (4) the court’s sentence

was substantively unreasonable. In addition, at oral argument Defendant relied on

our post-briefing opinion in United States v. Ramos, No. 11-3126, 

(10th Cir. Aug. 27, 2012), to argue that the distribution enhancement

required evidence of his knowledge of the file-sharing program’s capacity to

upload files to other computers. We address Defendant’s arguments in turn.

II.   DISCUSSION

      A.    The Guidelines Enhancement for Distribution

      We review de novo the district court’s interpretation of the Guidelines. See

United States v. Torres–Ruiz, 

, 1180–81 (10th Cir. 2004). The

enhancement at issue here applies if the receipt of material involving sexual

exploitation of a minor “involved . . . [d]istribution.” USSG § 2G2.2(b)(3)(F).

Distribution in this context is defined in the commentary to § 2G2.2, which states:

      “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.

n.1 (emphasis added).

      Our recent opinion in United States v. Ramos, 

, disposed

of the principal argument in Defendant’s briefs, holding that § 2G2.2(b)(3)(F)

                                         -8-
does not require the government to prove that child pornography was actually

transferred or that the defendant had an intent to distribute the pornography. See

Ramos had no need to decide whether knowledge was a necessary

element of the enhancement, because evidence in that case showed that the

defendant had sophisticated knowledge of how his file-sharing program provided

access to other users. See 

held only that “when an individual uses a

peer-to-peer network file-sharing program with knowledge that the program will

deposit downloaded child-pornography files into a shared folder accessible to

other users—e.g., rendering files only a mouse-click away—then that person has

engaged in an act related to the transfer of child pornography,” so the

enhancement can be properly applied. 

footnote to the quoted

language said, “Whether the government could ever establish distribution under

USSG § 2G2.2(b), where a defendant used a peer-to-peer file-sharing program but

possessed some lesser degree of knowledge is not a question we need consider

here.” 

now hold that § 2G2.2(b)(3)(F) does not require that a defendant know

about the distribution capability of the program he is using to view child

pornography. On its face, the text of § 2G2.2(b)(3)(F) requires no particular state

of mind, nor does the Sentencing Commission’s commentary. The former refers

only to “[d]istribution.” USSG § 2G2.2(b)(3)(F). And the latter refers only to

“an act . . . related to the transfer of material involving the sexual exploitation of

                                           -9-
a minor.” 

To be sure, a longstanding precept of criminal law is

that, except in the case of “public welfare” or “regulatory” offenses, criminal

statutory provisions should not be read to impose strict liability and should

instead be construed as carrying a mens rea element when they are silent. See

Staples v. United States, 

, 605–06 (1994) (internal quotation marks

omitted). The Supreme Court has explained that observance of this principle

helps avoid “criminaliz[ing] a broad range of apparently innocent conduct.” 

quotation marks omitted).

      A sentencing enhancement, however, is treated differently than a criminal

statute in a number of fundamental respects. See United States v. Nava-Sotelo,

, 1206 n.9 (10th Cir. 2003) (“For instance, unless they increase the

penalty for a crime beyond the prescribed statutory maximum, sentencing factors,

unlike elements of an offense, need not be alleged in the indictment, submitted to

the jury or proven beyond a reasonable doubt.”). We have repeatedly held that

when the plain language of a guideline, in contrast to a criminal statute, does not

include a mens rea element, we should not interpret the guideline as containing

such an element. See United States v. Saavedra, 

, 1289 (10th Cir.

2008) (“[W]here a statutory sentencing provision rather than an element of the


      2
        We recognize that the Commentary includes “possession with intent to
distribute” as an example of distribution. USSG § 2G2.2 cmt. n.1 (emphasis
added). But no such mens rea is attached to any other example, such as “posting
material . . . on a website for public viewing.” 

at issue, we have declined to impose a scienter requirement if the

text does not expressly include one.”); 

(“Not only

is the distinction between elements and sentencing factors clear, but the rationale

for implying a mens rea element in criminal statutes is absent when addressing

sentencing factors.”). The common-law principles articulated in Staples do not

apply because the Guidelines “may compound the punishment for the offense, but

fall far short of criminalizing apparently innocent conduct.” 

(brackets and internal quotation marks omitted). Thus, for example, we

held in Saavedra that the district court properly assigned the defendant the base

offense level prescribed for carrying a shotgun with a barrel shorter than 18

inches, even though the government had introduced no evidence that the

defendant knew that the barrel was that short. See 

circuits

agree. See United States v. Serfass, 

, 550–52 (5th Cir. 2012) (no

requirement of knowledge that the methamphetamine had been imported); United

States v. Thomas, 

, 68–70 (2d Cir. 2010) (no requirement that the

defendant knew or had reason to believe that gun was stolen); United States v.

McClain, 

, 1286 (11th Cir. 2001) (no requirement of knowledge

that person used in the offense was under 18); United States v. Lavender, 

, 941 (9th Cir. 2000) (no requirement that defendant intended to use as a

weapon the object being carried).




                                        -11-
      Our general rule for interpreting the Guidelines is reinforced in this case

because the same commentary that defines distribution without requiring scienter

defines distribution to a minor as “the knowing distribution to an individual who

is a minor at the time of the offense.” USSG § 2G2.2 cmt. n.1 (emphasis added).

Truly, the drafters of the commentary to § 2G2.2 knew how to include a scienter

requirement when they wanted to.

      Thus, we hold that the district court correctly applied § 2G2.2(b)(3)(F)

despite the absence of evidence that Defendant knew that the file-sharing program

he was using made his child-pornography files available to others on the Internet.

      We further hold that the district court did not err in rejecting Defendant’s

request to apply the two-level reduction of § 2G2.2(b)(1). That reduction applies

to a defendant who, like Defendant, has a base offense level of 22 under

§ 2G2.2(a)(2) if “the defendant’s conduct was limited to the receipt or solicitation

of material involving the sexual exploitation of a minor . . . and . . . the defendant

did not intend to traffic in, or distribute, such material.” 

added). The requirements of this provision are conjunctive.

Defendant’s contention that he never had any intent to distribute, even if accurate,

is therefore immaterial. The district court’s finding that Defendant had engaged

in distribution—a finding we uphold—foreclosed any finding that Defendant’s

conduct was limited to receipt or solicitation. Defendant was therefore ineligible

for the two-level reduction under § 2G2.2(b)(1).

                                         -12-
      B.     Fifth and Sixth Amendment Rights

      Defendant’s second claim on appeal is that the district court violated his

Fifth Amendment right to due process of law and his Sixth Amendment right to a

jury trial when it imposed the distribution enhancement based on a preponderance

of the evidence. He relies primarily on the line of cases beginning with Apprendi

v. New Jersey, 

, 490 (2000), which held: “Other than the fact of a

prior conviction, any fact that increases the penalty for a crime beyond the

prescribed statutory maximum must be submitted to a jury, and proved beyond a

reasonable doubt.” The Supreme Court, however, has definitively held that

Apprendi does not apply to the present advisory-Guidelines regime. See United

States v. Booker, 

, 259 (2005) (“[W]ithout this provision [of the

Guidelines statute]—namely, the provision that makes the relevant sentencing

rules mandatory and imposes binding requirements on all sentencing judges—the

statute falls outside the scope of Apprendi’s requirement.” (ellipsis, brackets, and

internal quotation marks omitted)). Although we have left open the possibility

that due process may require proof by clear and convincing evidence before

imposition of a Guidelines enhancement that increases a sentence by an

“extraordinary or dramatic” amount, United States v. Olsen, 

, 1105

(10th Cir. 2008), there was no such increase here. If the district court had agreed

with Defendant’s position on appeal regarding his offense level, his Guidelines

sentencing range would have been 97–121 months; but with the enhancements his

                                        -13-
range was not dramatically higher (151–188 months), and the sentence imposed

(102 months) was within the unenhanced range.

      C.    Procedural Claims in Connection with § 3553(a) Factors

      Defendant argues that his sentencing was procedurally unreasonable on

three grounds: (1) the district court mistakenly treated the Guidelines as

mandatory rather than advisory; (2) the court incorrectly refused to consider

evidence that he had been sexually abused as a young child; and (3) the court

refused to credit him with deleting the child pornography from his computer,

because it made the clearly erroneous finding that he had deleted the material

only for fear of apprehension and not because of genuine remorse or renunciation.

We review these claims for abuse of discretion. See United States v. Smart, 

, 805 (10th Cir. 2008). Abuse-of-discretion review ordinarily includes

review of any legal conclusions de novo and any factual findings for clear error.

See Cooter & Gell v. Hartmarx Corp., 

, 405 (1990); United States v.

Munoz-Nava, 

, 1146 (10th Cir. 2008).

            i.     Advisory Nature of Sentencing Guidelines

      Defendant points to several remarks by the district court during sentencing

that, he claims, reveal the court’s inappropriate deference to the Guidelines and

its mistaken impression that the Guidelines are mandatory rather than advisory in

nature. He argues that this deference caused it to depart from its duty to “impose

a sentence sufficient, but not greater than necessary, to comply with the purposes”

                                        -14-
of punishment enumerated in 18 U.S.C. § 3553(a)(2). 18 U.S.C. § 3553(a); see

also United States v. Martinez–Barragan, 

, 904 (10th Cir. 2008)

(describing this provision as communicating a “parsimony principle” (internal

quotation marks omitted)).

      We are not persuaded. The court said only that it is “required to consider

[the Guidelines]” and would “give them great weight and deference.” R., Vol. 3

at 107. Deference to the Guidelines is not improper. To the contrary, “a district

court should begin all sentencing proceedings by correctly calculating the

applicable Guidelines range. As a matter of administration and to secure

nationwide consistency, the Guidelines should be the starting point and the initial

benchmark.” Gall v. United States, 

, 49 (2007) (citation omitted).

Indeed, without deference the Guidelines would be impotent, and we would likely

soon return to the sentencing disparities that caused Congress to enact a

guidelines regime. Of course, deference can go too far; a slavish conformity to

the Guidelines is improper. But such slavishness was certainly not present here.

The court varied from the Guidelines to impose a sentence well below the

Guidelines sentencing range.

      Nor did the district court’s statements conflict with the parsimony principle

of § 3553(a). Expressing deference to the Guidelines is perfectly consistent with

§ 3553(a)’s command to impose a “sentence sufficient, but not greater than

necessary,” to carry out the purposes of § 3553(a)(2). As the Supreme Court has

                                        -15-
observed, “[T]he sentencing statutes envision both the sentencing judge and the

[Sentencing] Commission as carrying out the same basic § 3553(a) objectives, the

one, at retail, the other at wholesale.” Rita v. United States, 

, 348

(2007). Nothing in the district court’s words suggests a failure to perform its

retail consideration of the § 3553(a) factors as applied to Defendant.

             ii.   Defendant’s History of Sexual Abuse

      Defendant next contends that the district court erred by refusing to consider

his history of suffering sexual abuse as a young child. He points to the following

excerpt from the court’s discussion at sentencing:

      I have great sympathy for [Defendant] and others like him who are
      victims of prior abuse themselves, just as I have great sympathy for
      defendants who appear before me who are raised sometimes in the
      most disadvantageous situations. I frequently have criminal
      defendants in this courtroom who were raised without knowing their
      parents or their parents were in jail, they lived on the streets, they did
      not have educational, nutritional advantages that many people do.
      Those are sympathetic situations, but the law does not really allow
      that to be an excuse for criminal conduct. And while sympathetic to
      that, I can’t use that as a basis to reduce his sentence either.

R., Vol. 3 at 111 (emphases added). According to Defendant, the court’s refusal

to consider the childhood abuse violated 18 U.S.C. § 3553(a)(1), which requires

the sentencing court to consider “the history and characteristics of the defendant.”

18 U.S.C. § 3553(a)(1). We disagree.

      The district court’s words must be read in context. The court’s overall

treatment of the § 3553(a) factors convinces us that no error occurred. After


                                        -16-
citing the need to “look at . . . the characteristics of the defendant,” the court

credited Defendant’s youth, his community support, his efforts toward personal

rehabilitation, and his statement to the court as grounds for leniency. R., Vol. 3

at 114. Just as in the past we have said that “the district court is presumed to

recognize its discretion [to depart downward], unless it unambiguously states it

lacks discretion to grant the departure,” United States v. Fonseca, 

,

1112 (10th Cir. 2007), we presume that the district courts know that under the

present advisory-Guidelines regime, they may consider almost any factor not

antithetical to our system of justice (such as race or religion). It is not unusual

for a court to say that it “cannot” grant a party’s request when it is unpersuaded

by the party’s argument to exercise discretion in the party’s favor. In light of the

district court’s consideration of various personal information concerning

Defendant in reducing his sentence, we believe that if it thought that some

specific law, rather than the court’s own views of appropriate sentencing policies,

precluded consideration of childhood abuse, it would have said so. 3

             iii.   Defendant’s Erasure of Computer Files




      3
        We note that although the government does not ask us to review this issue
for plain error, Defendant did not object at sentencing that the court had
improperly limited its discretion. See United States v. Gantt, 

,
1246–47 (10th Cir. 2012) (issue not raised in district court is reviewed only for
plain error). Had he done so, the court could have clarified its statement,
presenting an unambiguous issue for us to review.

                                          -17-
      Defendant argues that the district court erred by refusing to consider (as

evidence of his efforts to reform) his deletion of the child-pornography files from

his computer several days before ICE executed its search warrant. This refusal,

Defendant claims, was based on a clearly erroneous finding that Defendant was

motivated solely by fear of apprehension and not by genuine conscience. The

challenged statement of the court was as follows:

      I’m hard-pressed to weigh too seriously his deletion of the images
      two or three days before he was arrested, because I tend to share the
      suspicions that [the government] has that perhaps that was done in
      part because, for whatever reason, he suspected that perhaps the
      noose was tightening. And even if not the case, the fact that he had
      looked at them only three days before arrested makes it hard pressed
      for me to credit him with having certainly decided to put all that
      behind him and truly lead a new life.

R., Vol. 3 at 111. Defendant asserts that “[c]ontrary to the district court’s belief,

Defendant had not been ‘tipped off’ as the Government and court suspected.”

Aplt. Br. at 29.

      We do not believe that the district court’s words can be characterized as

factual findings, let alone clearly erroneous ones. The court spoke simply of its

“suspicions” and twice used the word “perhaps” in elaborating on what those

suspicions were. Also, immediately after doing so, it allowed for the possibility

that its suspicions were false and explained why its judgment was correct

regardless. There was no error.

      D.     Substantive Reasonableness of Defendant’s Sentence


                                         -18-
       Defendant’s final claim on appeal is that the district court’s sentence of 102

months’ imprisonment was substantively unreasonable. In Defendant’s view, “the

only substantively reasonable sentence in this case is the five-year mandatory

minimum” required by 18 U.S.C. § 2252(b)(1). 

support of leniency,

he points to his deletion of the files from his computer, his childhood history of

sexual abuse, his having obtained counseling after his arrest, and his vulnerability

to prison abuse. We are not persuaded.

       Defendant’s 102-month sentence was below the range of 151 to 188 months

recommended by the Guidelines. We apply a “rebuttable presumption of

reasonableness to a below-guideline sentence challenged by the defendant as

unreasonably harsh.” United States v. Balbin-Mesa, 

, 788 (10th Cir.

2011). Defendant’s arguments are not sufficiently compelling to rebut the

presumption.

III.   CONCLUSION

       We AFFIRM the judgment of the district court.




                                        -19-