Thursday, November 21, 2013

Second Circuit finds sentencing enhancement only applicable with proof defendant knowingly placed CP in shared folder

The Second Circuit recently held that a two-level enhancement for distribution of child pornography can only be applied if the defendant "knowingly plac[ed] child pornography files in a peer-to-peer sharing folder." United States v. Reed, No. 11-4820 (2d Cir. 2013).

Under Section 2G2.2(b)(3), the Sentencing Guidelines allow a five-level enhancement for distribution "for the receipt, or expectation of receipt, of a thing of value, but not for pecuniary gain." Otherwise, a two-level enhancement applies. Under Second Circuit law, however, a knowledge requirement exists:

[T]he defendant must know that depositing files into the folder will make the files available to others. Indeed, we observed that the record in Reingold made "plain that [defendant] . . . knew from the start that distribution was a necessary condition of receipt . . . and, with that knowledge, took deliberate and purposeful actions to effect that distribution."
Because the district court did not determine if the defendant shared files knowingly, they vacated the sentence and remanded it for further proceedings.
We acknowledge that there is evidence in the record that Reed was a sophisticated and long-time computer user. While these facts arguably could support an inference that Reed knew he was placing files in a peer-to-peer sharing folder, the district court did not make such a finding, as Reingold requires.

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