Filed: Jun. 17, 2011
Latest Update: Feb. 22, 2020
Summary: [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ FILED U.S. COURT OF APPEALS No. 10-15682 ELEVENTH CIRCUIT Non-Argument Calendar JUNE 17, 2011 _ JOHN LEY CLERK D.C. Docket No. 1:10-cr-00018-SPM-AK-1 UNITED STATES OF AMERICA, llllllllllllllllllllllllllllllllllllllll Plaintiff-Appellee, versus TERRY M. DUFRAN, llllllllllllllllllllllllllllllllllllllll Defendant-Appellant. _ Appeal from the United States District Court for the Northern District of Florida _ (June 17,
Summary: [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ FILED U.S. COURT OF APPEALS No. 10-15682 ELEVENTH CIRCUIT Non-Argument Calendar JUNE 17, 2011 _ JOHN LEY CLERK D.C. Docket No. 1:10-cr-00018-SPM-AK-1 UNITED STATES OF AMERICA, llllllllllllllllllllllllllllllllllllllll Plaintiff-Appellee, versus TERRY M. DUFRAN, llllllllllllllllllllllllllllllllllllllll Defendant-Appellant. _ Appeal from the United States District Court for the Northern District of Florida _ (June 17, ..
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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-15682 ELEVENTH CIRCUIT
Non-Argument Calendar JUNE 17, 2011
________________________ JOHN LEY
CLERK
D.C. Docket No. 1:10-cr-00018-SPM-AK-1
UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllllllllllll Plaintiff-Appellee,
versus
TERRY M. DUFRAN,
llllllllllllllllllllllllllllllllllllllll Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Florida
________________________
(June 17, 2011)
Before BARKETT, MARCUS and FAY, Circuit Judges.
PER CURIAM:
Terry DuFran appeals his sentence for receipt of child pornography, 18
U.S.C. § 2252A(a)(2)(A) and (b)(1). DuFran argues that the district court erred in
applying a two-level sentencing enhancement under U.S.S.G. § 2G2.2(b)(3)(F) for
distribution of child pornography. For the reasons set forth below, we affirm.
I.
According to the presentence investigation report, DuFran was arrested
following an investigation of peer-to-peer file sharing networks conducted by the
North Florida Internet Crimes Against Children Task Force. In November 2009, a
task force agent used specialized software to locate a computer offering to
distribute child pornography. The same IP address had been recorded offering
child pornography files for distribution between September 7, 2009, and February
3, 2010. The agent viewed one video and confirmed that it depicted child
pornography.
Investigators eventually traced the IP address to DuFran’s residence. Law
enforcement officers executed a search warrant for the residence and recovered a
laptop computer that contained numerous images of child pornography. DuFran
admitted that the computer was his. He acknowledged that had installed a
file-sharing program, FrostWire, on his computer, and had used that program to
download images of child pornography. DuFran was aware that any images in the
FrostWire “share folder” could be accessed by other computers running that
program. He was surprised that the agents had found child pornography on the
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computer because it was his standard practice to “wipe” the child pornography
after he was finished viewing it.
In calculating DuFran’s guideline range, the PSI imposed a two-level
enhancement under § 2G2.2(b)(3)(F) for distribution of child pornography
because DuFran had placed some of the contraband files on a file sharing network.
DuFran objected to that enhancement, arguing that the evidence was insufficient
to show that he intended to distribute child pornography. DuFran explained that
he removed the child pornography images that he downloaded from the FrostWire
program’s share folder because he did not want to make those files available to
others. He asserted that the mere presence of a file-sharing program on his
computer was not enough to support the application of a distribution enhancement
The government responded that the evidence contradicted DuFran’s
assertion that he did not intend to distribute child pornography. The government
noted that DuFran had installed file sharing software on his computer and was
aware of how it worked. The government further observed that DuFran’s IP
address had been detected offering to distribute child pornography files between
September 2009 and February 2010.
At the sentencing hearing, the district court overruled DuFran’s objection to
the distribution enhancement. The court observed that DuFran had used
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peer-to-peer file sharing software to download and distribute images of child
pornography. The court found by a preponderance of the evidence that DuFran
was aware that the file sharing software would allow him to share images with
other users. The district court sentenced DuFran to a term of 240 months’
imprisonment.
II.
We review the district court’s factual findings at sentencing for clear error,
and the district court’s application of the Sentencing Guidelines to those facts de
novo. United States v. Lopez-Garcia, 565 F.3d 1306, 1323 (11th Cir. 2009). The
guideline for child pornography offenses calls for a two-level sentencing
enhancement in cases where the defendant distributed child pornography.
U.S.S.G. § 2G2.2(b)(3)(F). The application notes define 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, comment. (n.1).
DuFran does not dispute that making files available over a file sharing
network can constitute distribution, but he argues that the district court should not
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have applied a distribution enhancement in his case because he did not intend to
share the images of child pornography with others, and took an affirmative step to
avoid doing so by removing the images from his computer’s share folder. DuFran
relies most heavily on the Eighth Circuit’s decision in United States v. Durham,
618 F.3d 921 (8th Cir. 2010). In that case, a law enforcement officer discovered
that Durham’s IP address was offering to distribute child pornography files using
the LimeWire file sharing program.
Id. at 923. Durham argued that he should not
have received a distribution enhancement because there was no evidence that he
intended to make the child pornography available to others.
Id. at 924-25.
Under the Eighth Circuit’s case law, a defendant’s intent to distribute could
be inferred from the fact that the defendant had made the images available through
a file sharing program, unless the defendant presented “concrete evidence of
ignorance.” Id. at 926-27 (citing United States v. Dodd,
598 F.3d 449 (8th Cir.
2010)). In other words, the defendant needed to come forward with some
evidence showing that he did not know that he was making the files available to
others. The Eighth Circuit concluded that Durham had presented such evidence in
his case.
Durham, 618 F.3d at 931-32. Specifically, Durham’s brother had
testified that Durham had not installed the LimeWire program and was not
knowledgeable about the program.
Id. at 928-29. Although Durham had utilized
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LimeWire to download child pornography, there was nothing in the record to
suggest that he was aware of the program’s uploading capabilities. Id. at 929-32.
Accordingly, the Eighth Circuit reversed Durham’s two-level distribution
enhancement.
Id. at 932.
This case is distinguishable from Durham because DuFran installed the
FrostWire program himself and was familiar with how it worked. Among other
things, DuFran was aware that any files in the program’s share folder could be
downloaded by other computers connected to the file sharing network. Although
DuFran explained that he normally deleted the files after viewing them, law
enforcement officers detected his computer offering child pornography over the
FrostWire network between September 7, 2009, and February 3, 2010. Thus, it
appears that DuFran did, at some point, make child pornography available for
distribution. Given DuFran’s knowledge of FrostWire’s file sharing capabilities,
it was reasonable for the district court to determine that he made the files available
intentionally. We conclude that the district court did not err by applying a
two-level enhancement under U.S.S.G. § 2G2.2(b)(3)(F).
Accordingly, after review of the record and the parties’ briefs, we affirm
DuFran’s sentence.
AFFIRMED.
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