10th circuit rules that intent not required to trigger distribution sentence enhancement when a peer-to-peer system is used in child pornography case

The 10^th circuit held that using a peer-to-peer network file-sharing program in downloading child pornography is sufficient to trigger the application of a distribution sentence enhancement.

In U.S. v. Ray, No. 11-3383 (10th Cir. 2013), the court held that the U.S. Sentencing Guidelines Manual does not require the government to prove that child pornography was actually transferred or that the defendant had intent to distribute the pornography in order for the distribution sentence enhancement to apply.

The defendant pled guilty to receiving materials involving the sexual exploitation of a minor. Using the U.S. Sentencing Guidelines Manual, the district court sentenced the defendant to 102 months of imprisonment followed by a seven-years term of supervised release.

During sentencing, the district court applied a two-level sentencing enhancement for the distribution of child pornography under USSG § 2G2.2(b)(3)(F). The defendant appealed this decision on the basis that the government failed to provide any evidence that showed that the defendant had distributed any child pornography or that any of the files had been transferred to another computer.

 The record only indicated that the defendant used the peer-to-peer file-sharing software and that although its sharing function was enabled, the defendant did not actually know the software was capable of sharing.

The appellate court affirmed the lower court’s decision.  The state argued that the use of a peer-to-peer file-sharing program constituted generic distribution that triggers the application of the enhancement.

The court affirmed the lower court’s decision. It stated that the application of the enhancement does not require that the defendant know about the distribution capability.

The court reasoned that a sentencing enhancement in contrast to criminal statutes does not require  mens rea.

In my opinion, the court made the right intuitive call in this case. A peer-to-peer sharing system is intended for mass distribution. The essence of the system for users revolves around its mass distribution function and ease of access.

However, the court was silent on the appropriateness of using an implied mens rea requirement for such enhancers in the absence of a peer-to-peer sharing system.

Also, I find the court’s argument of an absence of a mens rea element or actual transfer requirement unconvincing. The actual statutory commentary definition of distributions states that:

“Distribution” includes 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.  USSG § 2G2.2 cmt. n.1.

It will be interesting to see the line of cases that follow after this decision.