US -v- Robinson

4-9-2013 Illinois:

US -v- Robinson
No. 12-2015

A jury convicted the defendant of possessing child pornography, and the judge sentenced him to 108 months in prison (to be followed by a 10-year term of supervised release) after increasing his base offense level by 15 levels. At issue are two of the 15 levels—a two-level enhancement that the guidelines prescribe if the defendant, though not charged with the separate offense of distributing child pornography, had in fact distributed the pornography that he possessed. U.S.S.G. § 2G2.2(b)(3)(F). This adjustment, which the judge thought applicable to the defendant, raised the defendant's guidelines sentencing range from 108 to 135 months to 135 to 168 months. But as the statutory maximum for the offense of possession was only 120 months at the time of the offense, see 18 U.S.C. § 2252(a)(4)(B) (2011), the judge could not sentence him within the higher range. The sentence of 108 months that the judge imposed was the floor of the lower range. (The judge could have given him an even lower sentence; there is no statutory minimum sentence for possession of child pornography.) If as the defendant argues the two-level increase for distribution was error, he is entitled to be resentenced, because the increase in the guideline range may have influenced the sentence that the judge gave him.

"Distribution" in the guideline is a term of art, because it includes not only what a lay person would describe as "distribution" but also "posting material . . . on a website for public viewing," U.S.S.G. § 2G2.2, application note 1, whether or not anyone actually views it. The defendant admitted in an interview by police to having downloaded quantities of child pornography through two peer-to-peer file-sharing computer programs, FrostWire and LimeWire, but he denies knowing that the files he downloaded could be viewed by other users of the programs.

The government denies that such knowledge is an element of the distribution guideline; it points out that the guideline does not specify that the defendant have acted knowingly. But we agree with the Eighth Circuit's decision in United States v. Durham, 618 F.3d 921, 926-27 (8th Cir. 2010)—and thus disagree with the recent decision by the Tenth Circuit in United States v. Ray, 704 F.3d 1307, 1311-12 (10th Cir. 2013), which, surprisingly, does not cite or mention Durham—that the sentencing judge must find that the defendant either knew, or was reckless in failing to discover, that the files he was downloading could be viewed online by other people. It's true that by making child pornography accessible by other persons, even if unknowingly, a defendant may (if other persons do in fact access his files of child pornography—we don't know whether anyone did in this case) magnify the harm. See United States v. Laraneta, 700 F.3d 983, 991-92 (7th Cir. 2012). But strict liability is disfavored in the criminal context.

We are dealing with a 61-year-old man in very poor health who will receive a stiff prison sentence even if we vacate the current one, and who on release will be at low risk of recidivating because of the restrictions on access to online material that the conditions of supervised release (not challenged by him) impose. The judge told him at sentencing: "I don't think that you will ever do this again because you're not going to have the opportunity to do it again. Even when you get out, you're going to be under supervised release for a considerable period of time in which you will be monitored"—in fact 10 years.

... ... ...


The government has, we conclude, clearly failed as yet to prove that the defendant knowingly made files of child pornography available to other users of LimeWire or FrostWire. The judgment is therefore vacated and the case remanded. At the resentencing hearing the prosecutor will have an opportunity to present evidence as to what the defendant knew or probably knew.

VACATED AND REMANDED.