JOAN A. LENARD, District Judge.
On February 12, 2015, a Grand Jury returned a two-count Indictment charging Defendant with (i) receipt of child pornography in violation of 18 U.S.C. § 2252(a)(2) & (b)(1) ("Count 1") and (ii) possession of child pornography in violation of 18 U.S.C. § 2252(a)(4)(B) & (b)(2) ("Count 2"). (Indictment, D.E. 4 at 1-2.) On February 17, 2015, Plaintiff pled not guilty to both charges. (See Arraignment Information Sheet, D.E. 7 at 1.) On April 8, 2015, Defendant entered into a Plea Agreement pursuant to which he would plead guilty to Count 1 (receipt of child pornography) in exchange for the Government dismissing Count 2 (possession of child pornography). (Plea Agreement, D.E. 14 at 1.)
On April 8, 2015, the Court held a Rule 11 change-of-plea hearing. (See D.E. 12.) During that proceeding, the Court reviewed with Defendant the Plea Agreement and a Stipulated Factual Statement which Defendant signed and which states in its entirety:
(D.E. 15 at 1-2.) After the Government read this statement at the Rule 11 hearing, Defendant stated that he agreed with it and had no corrections or deletions. (Transcript (4/8/15) at 15.)
The Probation Officer submitted the Presentence Investigation Report ("PSR") on May 18, 2015, followed by an Addendum on June 17, 2015. The Offense Level Computation assigned Defendant a Base Offense Level of 22 and included, inter alia, a two-level increase pursuant to U.S.S.G. § 2G2.2(b)(3)(F) "[b]ecause the offense involved distribution...." (PSR ¶¶ 22, 24.) Defendant objected to this enhancement on the grounds that "he had no intention of distributing any materials and did not plea to distributing the materials." (Addendum at 2.) He further requested a two-level reduction pursuant to U.S.S.G. § 2G2.2(b)(1) "because he claims his conduct was limited to the receipt of material and he did not intend on trafficking in or distributing that material." (Id. at 3.)
The sentencing hearing began on June 22, 2015. (See Minute Entry, D.E. 41.) On that date, the Court addressed Defendant's objection to the two-level enhancement for distribution under Section 2G2.2(b)(3)(F). (Transcript (6/22/15) at 8-15.) Defense counsel argued that the two-level enhancement for distribution should not apply because Defendant pled guilty only to receipt of child pornography and that he "had no intention of sharing this information." (Id. at 8.) He further argued that at the time of arrest he told law enforcement that "he does not have the ability to share these files and he doesn't understand the full functioning of the Ares[
The Court ultimately overruled Defendant's objection pursuant to Creel. (Id. at 14-15.) Specifically, it found there is no mens rea requirement for "distribution," which is defined by Application Note 1 under Section 2G2.2 as ""any act ... related to the transfer of material involving the sexual exploitation of a minor."" (Id. at 13 (quoting Creel, 783 F.3d at 1360 (quoting U.S.S.G. § 2G2.2 cmt. n. 1)).) Thus, notwithstanding Defendant's argument that he unintentionally and unknowingly distributed child pornography, the two-level enhancement applied.
Defendant then argued that notwithstanding the two-level enhancement for distribution, he was entitled to the two-level reduction under Section 2G2.2(b)(1) because his conduct was limited to the receipt of child pornography and he did not intend to distribute the material. (Id. at 16.) "[H]e had absolutely no intention
At the June 29, 2015 hearing, Defendant renewed his argument that the two-level reduction should apply, relying on his statements to law enforcement the day of the search but presenting no additional evidence. (See Transcript (6/29/15) at 2-5.) Thereafter, the Government called case agent Michael Schnaider of the United States Secret Service to testify regarding the Ares peer-to-peer file-sharing program, in which he was "specifically trained." (Transcript (6/29/15) at 7.) He testified that to use Ares, an individual must download the software from the internet. (Id. at 9.)
(Id.) Schnaider further testified that a user must double-click the file with a mouse cursor to begin the download process. (Id. at 26.)
Schnaider testified that the file exchange happens over the internet and that it does not require a special type of connection; the only requirements for one user to download from another user's share-folder are (1) both users must have an internet connection, and (2) the program must be actively running. (Id. at 8-9.) He further testified that a user does not have "to make a conscious step for the files that he downloads to be shared," but rather that "[t]he default setting automatically lets you share." (Id. at 23.) He also testified that while using the Ares program a user cannot stop sharing files: "All you can do is change the wavelength of how hard it is for someone to share a file with you. It just makes it more difficult for someone to download from you." (Id. at 19.) "You cannot turn it fully off." (Id. at 23.)
Schnaider testified that he used a law enforcement version of Ares.
(Id. at 10-12.) Schnaider went on to testify that all 31 files were downloaded from the specific IP address associated with Defendant's laptop computer over a Comcast internet connection. (Id. at 13.)
Schnaider explained that once a user opens the Ares program his files are available for others to download. (Id. at 14-15.) He testified that Defendant confessed that he would open the program and leave it running. (Id. at 14.)
(Id. at 15.) Schnaider then described some of the child pornography he downloaded from Defendant's shared folder. (See id.)
Based on Schnaider's investigation, a search warrant was issued and executed on January 29, 2015. (Id. at 15-16.) Schnaider spoke to Defendant, first in English and then in Spanish because Defendant "was more comfortable speaking in Spanish." (Id. at 18.) Defendant denied knowing that the files were being shared on Ares. (Id.) He further stated that the last time he downloaded child pornography was two weeks before the January 29, 2015 search. (Id.) However, Schnaider knew that was false because he was able to determine that Defendant downloaded several files of child pornography "about three to four hours before [Schnaider] actually served the search warrant, the same day." (Id.) The majority of the child pornography files that Defendant downloaded were described in English on Ares. (Id. at 19.)
The Court adopts its June 29 oral ruling, as supplemented and modified below.
"The proponent of the downward adjustment — here the defendant — always bears the burden of proving a mitigating role in the offense by a preponderance of the evidence." United States v. Rodriguez De Varon, 175 F.3d 930, 939 (11th Cir. 1999) (en banc) (citations omitted).
The sentencing guidelines for child pornography provide for a two-level decrease if: (A) the base offense level is 22; "(B) the defendant's conduct was limited to the receipt or solicitation of material involving the sexual exploitation of a minor; and (C) the defendant did not intend to traffic in, or distribute, such material[.]" U.S.S.G. § 2G2.2(b)(1). Defendant argues that he is entitled to this reduction because he did not know that his files could be shared and "had no intention of distributing any materials nor did he plea to distributing these materials." (Objections, D.E. 20 ¶ 6.)
The Eleventh Circuit has apparently not addressed the precise issue before this Court — i.e., whether a defendant who was adjudicated guilty only of receiving child pornography and who receives the two-level enhancement for distribution under U.S.S.G. § 2G2.2(b)(3)(F) may still be eligible for the two-level reduction in U.S.S.G. § 2G2.2(b)(1).
The Fifth Circuit affirmed the sentence. See id. at 624. First, it held that Section 2G2.2(b)(3)(F) does not contain a scienter requirement and, therefore, the district court did not err in applying the two-level increase for distribution, "even absent evidence of [the defendant's] knowledge." Id. at 623. Furthermore, and relevant to the issue presently before the Court, the Fifth Circuit held:
Id. at 623-24. Thus, under Baker, if a defendant receives the two-level enhancement for distribution under Section 2G2.2(b)(3)(F), he is ineligible for the two-level reduction under Section 2G2.2(b)(1). See id.
Similarly, in Ray, the defendant used the peer-to-peer file-sharing program "Shareaza" to search for and download child pornography. 704 F.3d at 1309. He "admitted that he was familiar with how to use computers and the Internet but said he was not a `computer genius.'" Id. The Government's forensic investigation revealed that child pornography had been accessed four days prior to ICE's search of the defendant's home, and that the "share" setting of the Shareaza program was activated. Id. The defendant was charged with both distributing and receiving child pornography, but pled guilty only to receipt. Id. However, the PSR concluded that the two-level enhancement for distribution under Section 2G2.2(b)(3)(F) applied. Id. at 1310. The defendant objected, arguing that "the government had offered no evidence that [he] had distributed any child pornography or that any of the files downloaded through Shareaza had later been shared with another computer." Id. He further argued "that even if such sharing had occurred, such sharing had been unintentional." Id. Thus, the defendant argued that the two-level reduction under Section 2G2.2(b)(1) should apply "because his conduct `was limited to
The Tenth Circuit affirmed. See id. at 1317. First, it held that Section 2G2.2(b)(3)(F) required neither (1) intent to distribute nor (2) knowledge of the filesharing program's distribution capability, id. at 1311-12, and therefore the district court correctly applied the two-level enhancement "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," id. at 1313. Second, it held that "the district court did not err in rejecting Defendant's request to apply the two-level reduction of § 2G2.2(b)(1)." Id.
Id. Thus, Ray stands for the proposition that eligibility for the two-level reduction under Section 2G2.2(b)(1) is precluded by the application of the two-level enhancement for distribution under Section 2G2.2(b)(3)(F). See id.
Here, at the June 22, 2015 sentencing hearing, the Court found that pursuant to the Eleventh Circuit's opinion in Creel, the two-level enhancement for distribution under Section 2G2.2(b)(3)(F) applied notwithstanding Defendant's argument that he "had no intention of distributing any materials" and did not "know that his files could be shared."
Here, Defendant downloaded child pornography into a shared folder on the Ares network, making the files accessible to others. (See Transcript 6/29/15 at 7, 23.) Special Agent Schnaider testified that he downloaded 31 files of child pornography from Defendant's shared folder through the Ares network. (Id. at 11-13.) He further testified that other users also could have been downloading those files from Defendant's shared folder. (Id. at 15.) This constitutes distribution under Section 2G2.2. See Spriggs, 666 F.3d at 1287; Creel, 783 F.3d at 1360. It is irrelevant whether Defendant knew or intended to share the files because distribution contains no mens rea element under Section 2G2.2. Creel, 783 F.3d at 1360. Because Defendant distributed child pornography by downloading it into a shared folder on his computer through the Ares network, which was then downloaded by Special Agent Schnaider and was accessible to others, his conduct was not "limited to the receipt or solicitation of material involving the sexual exploitation of a minor," U.S.S.G. § 2G2.2(b)(1)(B), and he is therefore not eligible for the two-level reduction.
The Court further finds that Defendant's act of going into the shared folders of other Ares users to download child pornography constitutes "distribution" under the definition in Application Note 1, precluding him from receiving the two-level reduction under Section 2G2.2(b)(1). Special Agent Schnaider testified that in order to download a video from Ares, a user types in search terms and the program returns a list of the computers currently running the program that contain a video matching the search terms. (Transcript (6/29/15) at 9, 20.) Then, the user is required to double-click on the file to begin the download process. (Id. at 26.) Schnaider further testified that the forensic report on Defendant's computer revealed
For these reasons, the Court finds that Defendant failed to prove by a preponderance of the evidence that he was eligible for the reduction. Indeed, the only evidence to which Defendant cites in support of the reduction is his own statement to law enforcement the day of the search that he did not know he was sharing the files he downloaded through Ares. (Objections ¶ 6.) However, during the same interview, Defendant told Special Agent Schnaider that the last time he downloaded child pornography was two weeks prior to the search, although Schnaider knew that Defendant had downloaded several files of child pornography "about three to four hours before [Schnaider] actually served the search warrant, the same day." (Transcript (6/29/15) at 18.) Also during the same interview, Defendant claimed that his laptop broke a week before the search; however, "[w]hen asked about the water trail, he stated that he would now tell law enforcement the truth, and that he just tried to break it and then wet it because he thought he could be in trouble for watching adult pornography." (PSR ¶ 15.) Thus, the Court finds that Defendant's statement that he did not know he was sharing his files through Ares is not credible.
On the other hand, Special Agent Schnaider — who the Court does find to be credible — testified that Ares requires users to submit to a licensing agreement. (Id. at 11.)
(Id. at 11 (emphasis added).) Although Defense Counsel objected that there was no evidence that Defendant read the agreement or even could read it in English, there is sufficient evidence that Defendant knew some English. For example, when law enforcement spoke with Defendant during the execution of the search warrant, the conversation began in English but switched to Spanish after Defendant stated he was more comfortable speaking in Spanish. (Id. at 17-18.) Furthermore, Schnaider testified that in order to locate a file to download, an Ares user is required to type "search terms," and that the majority of the child pornography filenames found on Defendant's computer were in English. (Id. at 19.) In other words, Defendant was searching for child pornography in English. (See id.) For example, Defendant would search for "PTHC" — which stands for "pre-teen hard core" — in conjunction with several different words, like "Venezuela." (Id. at 18.)
Finally, even if Defendant did not read the licensing agreement, the evidence nevertheless gives rise to a reasonable inference that Defendant knew he was sharing his files. Defendant admitted that he had been downloading and viewing child pornography
In sum, the Court finds that the provisions of U.S.S.G. § 2G2.2(b)(1) are conjunctive — that is, to be eligible for the reduction (1) the defendant's conduct must be limited to the receipt or solicitation of material involving the sexual exploitation of a minor and (2) the defendant must not have intended to traffic in, or distribute, such material. See Ray, 704 F.3d at 1313. Because the Court previously found that the offense involved "distribution" as that term is defined in Application Note 1 and, consequently, that the two-level enhancement applied under Section 2G2.2(b)(3)(F), see Creel, 783 F.3d at 1360, Defendant's conduct was not "limited to the receipt or solicitation of" child pornography. See Baker, 742 F.3d at 623-24; Ray, 704 F.3d at 1313-14. Therefore, Defendant is not eligible for the two-level reduction under Section 2G2.2(b)(1).
Accordingly, it is
(Id.) The statement that Defendant preferred ten to eleven year-old girls later appeared in Paragraph 15 of the PSR. Defendant objected to this statement, alleging that he told law enforcement officers that he preferred girls "over the age of 13." (Objections, D.E. 20 ¶ 2.) Defendant noted this Objection at the sentencing hearing when the Court was making its findings pursuant to 18 U.S.C. § 3553(a). (See Transcript (6/29/15) at 55-56.) However, Defendant did not state at the Rule 11 hearing that he preferred girls over the age of thirteen or that he told law enforcement that he preferred girls over the age of thirteen. The Government maintains that Defendant's statement to law enforcement indicated a preference for ten to eleven year-old girls. (Id. at 56.) What Defendant actually said is irrelevant to the Court's disposition.
