United States v. Montanez-Quinones , 911 F.3d 59 ( 2018 )

United States Court of Appeals
For the First Circuit
No. 17-1577
UNITED STATES OF AMERICA,
Appellee,
v.
RICARDO MONTAÑEZ-QUIÑONES,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Carmen Consuelo Cerezo, U.S. District Judge]
Before
Thompson, Selya, and Lipez,
Circuit Judges.
Jane Elizabeth Lee for appellant.
Julia M. Meconiates, Assistant United States Attorney, with
whom Rosa Emilia Rodriguez-Velez, United States Attorney and
Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief,
Appellate Division, were on brief, for appellee.
December 21, 2018
SELYA, Circuit Judge. Defendant-appellant Ricardo
Montañez-Quiñones seeks to set aside his 109-month sentence for
possession of child pornography. In support, he both reproves the
government for allegedly violating the plea agreement through its
overzealous advocacy at sentencing and reproves the district court
for enhancing his offense level through an allegedly erroneous
finding that he knowingly distributed child pornography.
Concluding, as we do, that neither claim of error withstands
scrutiny, we affirm the challenged sentence.
I. BACKGROUND
We briefly rehearse the facts and travel of the case.
Because this appeal follows a guilty plea, we draw our account
from the plea agreement, the undisputed portions of the pre-
sentence investigation report (PSI Report), and the transcripts of
the change of plea and sentencing hearings. See United States v.
Coleman, 884 F.3d 67, 69 (1st Cir. 2018).
On September 20, 2015, as part of an investigation of
pornography sharing on Ares (a peer-to-peer file-sharing network),
a computer forensic laboratory associated with the Department of
Homeland Security (DHS) successfully downloaded a seven-minute
video that depicted a sexual encounter between a young girl
(approximately eight to ten years of age) and an adult man. DHS
agents traced the file to the residence of the defendant in Gurabo,
Puerto Rico, and executed a search warrant for that address. The
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agents seized two devices: a laptop computer and a desktop
computer.
The seized computers collectively housed 1,072 child sex
abuse images. Those images showed boys and girls between four and
fourteen years of age performing oral sex on adult men and being
vaginally and anally penetrated by adult men. The agents' analysis
also revealed an additional 3,613 child sex abuse files, which had
either been downloaded and erased or were incomplete downloads, 89
child sex abuse files being shared on Ares, and at least 48 search
terms related to child sex abuse.
In due course, a federal grand jury sitting in the
District of Puerto Rico handed up an indictment charging the
defendant with two counts of transportation of child pornography
and one count of possession of child pornography (including images
of prepubescent minors engaged in sexually explicit conduct). 18
U.S.C. § 2252A(a)(5)(B), (b)(2). Although the defendant
originally maintained his innocence, he eventually executed a non-
binding plea agreement, see Fed. R. Crim. P. 11(c)(1)(B), and
entered a guilty plea to the charge of possession of child
pornography. In exchange for the defendant's plea, the government
agreed to dismiss the remaining two counts.
In the plea agreement (the Agreement), the parties
agreed to a total offense level of 28, which included a two-level
enhancement for distribution, see USSG §2G2.2(b)(3)(F), and a
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three-level enhancement premised on a stipulation that the offense
of conviction involved between 150 and 300 offending images, see
USSG §2G2.2(b)(7)(B). These stipulations were not intended to
bind the sentencing court, see Fed. R. Crim. P. 11(c)(1)(B), and
the Agreement contained no stipulation as to the defendant's
criminal history category (CHC). The parties nonetheless agreed
that, with a CHC of I, the guideline sentencing range would be 78-
97 months; that the defendant could argue for a sentence at the
low end of that hypothetical range; and that the government could
argue for a sentence up to 87 months (the mid-point of the
hypothetical range).1
The probation officer offered a slightly different
assessment. The PSI Report calculated the defendant's total
offense level at 30 based on a finding that the defendant possessed
600 or more offending images. With a CHC of I, the applicable
guideline sentencing range would be 97-121 months. In his
objections to the PSI Report, the defendant took issue with its
inclusion of the two-level enhancement for knowing distribution.
Although the same enhancement had been contemplated by the
Agreement, the defendant argued that there was a critical
distinction: since executing the Agreement, USSG §2G2.2(b)(3)(F)
1 The parties agree that the government remained bound to this
ceiling even if the district court — as happened here — determined
that a more onerous guideline sentencing range applied.
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had been amended to include a mens rea requirement. See USSG App.
C, Amend. 801 (effective Nov. 1, 2016). The defendant argued that
there was too little evidence to satisfy this new requirement.
Specifically, he asserted that in order to prove knowing
distribution, the government was obliged to introduce "evidence
concerning the operation of the specific file sharing program used
in the present case" and that it had failed to do so.
The district court was not persuaded that so precise an
evidentiary showing was necessary to ground the enhancement. It
overruled the defendant's objection based on its determination
that "the evidence on record showed that defendant knew of the
file-sharing properties of the 'Ares' program." In this regard,
the court noted that the defendant was a "sophisticated and long-
time computer user." This background, which included the
defendant's degrees in computer science and computer networks and
his statements that he was skilled in computers and would like to
pursue an advanced degree in computer networks, was sufficient to
infer the requisite knowledge. To cinch matters, the defendant
had stored a portion of his downloaded child sex abuse files to a
"shared" folder, indicating that he had curated "the particular
contraband that he wanted to exchange through the 'Ares' file-
sharing program."
After the court upheld the propriety of the knowing
distribution enhancement, the disposition hearing proceeded. In
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accordance with the Agreement, the defendant argued for a sentence
of 78 months (the low end of the hypothetical guideline range
stipulated to by the parties). The government argued for a
sentence of 87 months (the mid-point of the hypothetical range).
In support of his argument, the defendant emphasized his difficult
childhood and a history of abuse. The government countered that
the defendant's conduct had helped to support an industry that
"feeds on the sexual abuse and torture of children."
When all was said and done, the district court refused
to accept the parties' stipulated guideline range. Instead, it
embraced the guideline calculations contained in the PSI Report,
which included a higher offense level that added five levels for
possession of 600 or more offending images. Using a total offense
level of 30 and a CHC of I, the court adopted a guideline sentencing
range of 97-121 months. It proceeded to sentence the defendant to
a mid-range 109-month term of immurement. This timely appeal
ensued.
II. ANALYSIS
In this venue, the defendant attacks his sentence on two
fronts. First, he contends that the government breached the terms
of the Agreement by failing to advocate for the bargained-for
sentence. Second, he contends that the district court's finding
that he knowingly distributed child pornography was in error. We
examine each contention in turn.
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A. Alleged Breach of Plea Agreement.
The defendant begins by asseverating that statements
made by the prosecutor during the disposition hearing, along with
statements that the government failed to make, comprised a breach
of the Agreement. This asseveration breaks new ground, as the
defendant failed to mount this claim of error below. Consequently,
our review is only for plain error — "a formidable standard of
appellate review." United States v. Saxena, 229 F.3d 1, 5 (1st
Cir. 2000); see United States v. Almonte-Nuñez, 771 F.3d 84, 89
(1st Cir. 2014) (citing Puckett v. United States, 556 U.S. 129,
143 (2009)). Under this standard, an appellant bears the burden
of showing "(1) that an error occurred (2) which was clear or
obvious and which not only (3) affected the defendant's substantial
rights, but also (4) seriously impaired the fairness, integrity,
or public reputation of judicial proceedings." United States v.
Duarte, 246 F.3d 56, 60 (1st Cir. 2001). Within this rubric, an
appellant's substantial rights are deemed to be affected only when
an error "likely affected the outcome of the proceedings."
Almonte-Nuñez, 771 F.3d at 89.
It cannot be gainsaid that "[a] plea agreement is a
binding promise by the government and is an inducement for the
guilty plea." United States v. Gonczy, 357 F.3d 50, 53 (1st Cir.
2004) (citing Santobello v. New York, 404 U.S. 257, 262 (1971)).
It follows that "a failure to support that promise is a breach of
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the plea agreement, whether done deliberately or not." Id.
Because a defendant waives a panoply of constitutional rights by
entering into a plea agreement, we hold the government to "the
most meticulous standards of both promise and performance."
Correale v. United States, 479 F.2d 944, 947 (1st Cir. 1973).
Simply providing "lip service" to these solemn obligations will
not suffice. Saxena, 229 F.3d at 6.
Before us, the defendant asserts that the government
violated the Agreement because it did not assiduously advocate for
the bargained-for sentence and made a bad situation worse by
misrepresenting the number of offending images stipulated in the
Agreement. Some further facts are needed to put the assertion
into perspective.
The government had agreed to recommend an incarceration
sentence of no more than 87 months. At the disposition hearing
the prosecutor stated, consistent with this agreement, on no fewer
than five occasions that the government was recommending a sentence
of 87 months. The defendant views these repeated recommendations
as hollow: he points out that the prosecutor did not mention the
total offense level of 28 referenced in the Agreement but, rather,
stated (incorrectly) that the parties had stipulated to 300 to 600
offending images. Furthermore, the defendant claims that the
prosecutor "excoriated [him] and condemned his conduct in the
strongest terms," thereby nullifying whatever "lip service" that
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the prosecutor might have given to the bargained-for sentencing
recommendation.
We start our consideration of the defendant's argument
with first principles: "[n]o magic formula exists for a prosecutor
to comply with the agreed-upon sentence recommendation." Gonczy,
357 F.3d at 54. Having repeatedly stated the government's
sentencing recommendation of 87 months to the court, the prosecutor
was not required to discuss any specific aspects of the
government's thinking. In assessing whether the government
breached its agreement to argue for the bargained-for sentence, we
look instead to whether its "overall conduct" was "reasonably
consistent with making such a recommendation, rather than the
reverse." Id. (quoting United States v. Canada, 960 F.2d 263, 268
(1st Cir. 1992)); see Almonte-Nuñez, 771 F.3d at 91 ("We consider
the totality of the circumstances in determining whether a
prosecutor engaged in impermissible tactics.").
To be sure, the defendant perceives an inconsistency
between the prosecutor's limited discussion of the government's
sentencing recommendation and the strong language that the
prosecutor used to describe the nature of the defendant's crime.
We acknowledge, of course, that "it is possible for a prosecutor
to undercut a plea agreement while paying lip service to its
covenants." Almonte-Nuñez, 771 F.3d at 90-91. For example, we
have found (albeit under a more sympathetic standard of review)
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that such a breach occurred when the government never affirmatively
recommended the agreed-upon sentence, see Canada, 960 F.2d at 268;
when the government effectively argued against a sentencing
reduction in contravention of the plea agreement, see United States
v. Clark, 55 F.3d 9, 12-13 (1st Cir. 1995); and when the
government's zealous advocacy belied its agreement to recommend
the low end of the applicable guideline sentencing range, see
Gonczy, 357 F.3d at 54. Those cases, though, are at a far remove
from the case at hand.
In this instance, the prosecutor repeatedly stated the
government's recommendation of 87 months in accordance with the
Agreement. See Saxena, 229 F.3d at 7 (finding no breach where
prosecutor "resolutely stood by the bottom-line recommendation
that the government had committed to make"); United States v.
Irizarry-Rosario, 903 F.3d 151, 155 (1st Cir. 2018) (finding no
breach where explanation of sentencing recommendation was
"interspersed with reaffirmations of the . . . sentencing
recommendation"). While the prosecutor's statements to this
effect were simple and straightforward, a prosecutor is not obliged
to present an agreed recommendation either with ruffles and
flourishes or "with any particular degree of enthusiasm." Canada,
960 F.2d at 270. Nor is the defendant entitled "to have the
government sugarcoat the facts." Almonte-Nuñez, 771 F.3d at 91.
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The defendant's attempt to find a breach of the plea
agreement in the prosecutor's unflattering narrative about the
heinous nature of the defendant's crime is unpersuasive. This
argument overlooks the salient fact that, under the Agreement, the
government had a right to advocate for a sentence higher than the
sentence that the defendant was seeking. Thus, the prosecutor had
a right (indeed, a duty) to explain to the court why the higher
sentence that it was urging was more appropriate. Almonte-Nuñez
illustrates this point. There, we held that where a plea agreement
entitled the prosecutor to argue for the high end of a guideline
range while the defendant argued for the low end of that range,
the prosecutor "was within fair territory in emphasizing facts
that made a sentence at the low end of that [range] inappropriate."
Id.
So it is here. The prosecutor had every right to
highlight the serious nature of the offense and its impact on
society in order to advocate for a sentence above the sentence
requested by the defendant, as well as to demonstrate the
unsuitable nature of the defendant's request. To this end, the
prosecutor told the court that the conduct underlying the
conviction was such as to "feed[] a terrible industry" supported
by "the sexual abuse and torture of children," and that "the
defendant chose to pursue his own sexual gratification with
flagrant disregard for the welfare of thousands of minor children."
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Such language, though harsh, coheres both with the government's
decision to charge the defendant with this serious crime and with
its reservation of the right to argue for an 87-month sentence.
We hold, therefore, that the prosecutor's statements at sentencing
did not contradict any terms of the Agreement, nor did they
"'gratuitously offer[] added detail garbed in implicit advocacy'
that might have led the district court to rethink the government's
recommendation." Irizarry-Rosario, 903 F.3d at 155 (quoting
United States v. Miranda-Martinez, 790 F.3d 270, 275 (1st Cir.
2015)). When the parties agree that a defendant may argue for a
particular sentence while the government may argue for a somewhat
stiffer sentence, the government is not constrained to pull its
punches when arguing for the stiffer sentence.
The defendant has a fallback position. He says that the
government breached the Agreement when it "advocated for a higher
number of images than stipulated in the plea agreement." The
government concedes that the prosecutor misstated the number of
images stipulated in the Agreement but maintains that this was a
slip of the tongue. Everything in the record points toward a
finding of inadvertence. At the disposition hearing, there was no
contemporaneous objection and, indeed, none of the parties appear
to have noticed the misstatement when it was made. The prosecutor
proceeded to recommend a sentence of 87 months — a recommendation
derived from a hypothetical guideline sentencing range determined
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in accordance with the number of images stipulated in the
Agreement. The bottom line, then, is that "[t]his is not a record
in which the misstep conveyed a message that the ultimate
recommendation was insincere." United States v. Oppenheimer-
Torres, 806 F.3d 1, 4 (1st Cir. 2015).
Nor does it appear that the misstatement in any way
affected the outcome of the proceedings. The record is bereft of
any basis from which we might reasonably infer that the district
court was misled as to the number of images stipulated to by the
parties. That number was correctly described both in the Agreement
and in the PSI Report — and those documents were before the
district court at sentencing. And in any event, the court itself
had independently determined that the offense conduct involved 600
or more images. Given the totality of the circumstances, we find
no prejudice attendant to the prosecutor's lapses linguae and,
thus, no merit in the defendant's claim that this misstatement
heralded a breach of the plea agreement.
B. Knowing Distribution.
This brings us to the defendant's plaint that the
district court erred when it included a two-level enhancement for
knowing distribution in its calculation of the guideline
sentencing range. This plaint has a narrow focus: while the
defendant does not dispute that distribution occurred, he alleges
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that the government failed to provide evidence that he knew of the
file-sharing properties of the program.
It is elementary that "the government bears the burden
of proving sentence-enhancing factors by a preponderance of the
evidence." United States v. Nuñez, 852 F.3d 141, 144 (1st Cir.
2017). We apply a clear error standard of review to the sentencing
court's factfinding — a standard that extends to any findings based
on inferences drawn from discerned facts. See id. This is a
demanding standard, satisfied only if, "upon whole-record-review,
an inquiring court 'form[s] a strong, unyielding belief that a
mistake has been made.'" United States v. Cintrón-Echautegui, 604
F.3d 1, 6 (1st Cir. 2010) (alteration in original) (quoting
Cumpiano v. Banco Santander P.R., 902 F.2d 148, 152 (1st Cir.
1990)).2
Section 2G2.2(b)(3)(F) of the sentencing guidelines was
amended, effective as of November 2016, to limit the two-level
enhancement to possessors of child pornography who "knowingly
2 The dissent suggests that deference to the district court's
factual findings may be lessened here because we are assessing the
district court's logic on a paper record, which invites no weighing
of credibility. See post at 31. What the dissent calls "logic"
is nothing more or less than the drawing of inferences from the
facts of record and, thus, the dissent's suggestion lacks force.
See RCI Ne. Servs. Div. v. Bos. Edison Co., 822 F.2d 199, 202 (1st
Cir. 1987) ("[F]indings of fact do not forfeit 'clearly erroneous'
deference merely because they stem from a paper record."); see
also Limone v. United States, 579 F.3d 79, 94 (1st Cir. 2009) ("The
application of clear-error review to findings drawn from a paper
record has long been the practice in this circuit.").
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engaged in distribution." In incorporating a mens rea requirement,
the Sentencing Commission resolved a circuit split and "generally
adopt[ed] the approach of the Second, Fourth, and Seventh
Circuits." USSG Supp. to App. C, Amend. 801 at 145 (2016); see
United States v. Baldwin, 743 F.3d 357, 361 (2d Cir. 2014) (per
curiam); United States v. Robinson, 714 F.3d 466, 469-70 (7th Cir.
2013); United States v. Layton, 564 F.3d 330, 335 (4th Cir. 2009).
Even as amended, though, the enhancement does not require proof
that the defendant intended to distribute child pornography — "as
long as he had knowledge that by using a peer-to-peer file-sharing
program, his child pornography was made accessible to others."
United States v. Cates, 897 F.3d 349, 359 (1st Cir. 2018) (emphasis
in original). In all events, "the government need not prove
knowledge by direct evidence, but may prove knowledge by
circumstantial evidence." Id. Viewed against this backdrop, the
defendant's argument that the government failed to provide "some
evidence" that he affirmatively knew of the file-sharing
properties of the application "confuses a lack of direct evidence
with a lack of evidence." Id.
Cates is instructive. There, we determined that the
district court drew a reasonable inference that the defendant knew
of the file-sharing properties of a peer-to-peer network when it
relied on evidence that the defendant was "relatively
sophisticated in computer matters" and had demonstrated
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familiarity with the program's file-sharing properties. Id. at
359-60. The findings in Cates, albeit based on a stronger
evidentiary predicate, are on the same order as those of the court
below, which drew an equally reasonable inference of knowledge
based on uncontradicted evidence that the defendant was a
"sophisticated and long-time computer user" who had selected from
thousands of downloaded files a limited number to share through
the file-sharing program.
On this record, the sentencing court was entitled to
draw the plausible inferences that led to a finding of knowledge.
Inferences based on circumstantial evidence "need not be compelled
but, rather, need only be plausible." See Nuñez, 852 F.3d at 146.
The court below reasonably could infer that the defendant was a
sophisticated computer user based on evidence that he had acquired
two degrees in computer science and computer networks. Similarly,
the court reasonably could infer that the defendant selected a
limited number of child sex abuse files to be shared on Ares. That
conclusion was based on evidence that the defendant had downloaded
thousands of child sex abuse files but that he shared only 74 and
15 child sex abuse files, respectively, on each of his two
computers.
Surely, other plausible inferences could be drawn from
this evidence. But that is not the test: the decisive
consideration is that, on the record before it, the court below
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plausibly could infer that the disparity between files downloaded
and files shared was a result of the defendant's desire to share
only some files. And it is apodictic that "[w]here the raw facts
are susceptible to competing inferences," a district court's
"choice between those inferences cannot be clearly erroneous."
United States v. McCormick, 773 F.3d 357, 359 (1st Cir. 2014).
The defendant challenges the sufficiency of these
findings. He submits that the government was required to furnish
evidence concerning the operation of the particular file-sharing
program at issue. We previously have called such an argument a
"red herring," holding that the sentencing court drew a reasonable
inference of knowledge without the benefit of evidence that files
downloaded through the program were automatically accessible for
others to download. Id. The argument has not changed its color
in the short time that has elapsed since Cates was decided.
Let us be perfectly clear. We do not hold that such
evidence is irrelevant to the issue of knowing distribution.
Simply using a program (like Ares) that automatically steers
downloaded files into a shared folder may well be insufficient,
standing alone, to support an inference of knowledge, particularly
if the government has not provided evidence that the defendant
knew of this mechanism or otherwise possessed the technological
proficiency to understand that it was in place. See, e.g., United
States v. Carroll, 886 F.3d 1347, 1354 & n.4 (11th Cir. 2018)
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(holding that government was required to "put forth evidence that
[defendant] had some advanced technological proficiency" to
support finding of knowing distribution by means of file-sharing
program that did not notify users of automatic sharing); Robinson,
714 F.3d at 470 (concluding that computer novice who "had never
seen a file-sharing program before might not realize" that "shared
files are accessible automatically to other persons online").
Conversely, concerns about automatic file-sharing have been
allayed where — as in Cates — courts have found that the defendant
possessed "advanced computer knowledge" or used the program in a
manner that indicated an understanding of how the program worked.
See United States v. Alpizar, ___ F.3d ___, ___ (11th Cir. 2018)
[No. 16-15170, slip op. at 6]; United States v. Nordin, 701 F.
App'x 545, 546 (8th Cir. 2017) (per curiam).
This case is of the latter stripe. The court below
reasonably inferred knowledge both from its well-supported finding
that the defendant was "a sophisticated and long-time computer
user" and from the defendant's storage of select files in his
shared folder. No more was exigible to render the court's findings
adequate as a foundation for a reasonable inference of knowledge,
regardless of whether downloaded files were automatically
available for distribution to others. Accordingly, we discern no
clear error in the court's imposition of a two-level enhancement
for knowing distribution of child pornography.
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III. CONCLUSION
We need go no further. For the reasons elucidated above,
the defendant's sentence is
Affirmed.
— Separate Opinion Follows —
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LIPEZ, Circuit Judge, concurring in part and dissenting
in part. Although I concur with the majority's conclusion
regarding the government's alleged violation of the plea
agreement, I respectfully disagree with its conclusion regarding
the sentencing enhancement that was applied to increase
appellant's sentence. That enhancement is not supported by the
record before the district court. Therefore, I would hold that
the court clearly erred in determining that the government proved
appellant's knowledge of distribution by a preponderance of the
evidence. Before explaining my reasoning, I must provide some
context for my assessment of the enhancement and augment the
majority's description of the factual record.
I.
A. Peer-to-Peer File-Sharing Programs
In recent years, "'peer-to-peer' . . . file-sharing via
the Internet has resulted in significant changes in the manner in
which [child pornography] offenses are committed." U.S.
Sentencing Comm'n, Report to the Congress: Federal Child
Pornography Offenses (Dec. 2012), at 5. Peer-to-peer file-sharing
networks "'allow[] users to download files from the computers of
other users. Unlike other means of acquiring files over the
Internet, such as in a chat room or using e-mail[,] . . . no
personalized contact is required between the provider and
receiver.'" United States v. R.V., 157 F. Supp. 3d 207, 235
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(E.D.N.Y. 2016) (quoting Maggie Meuthing, Inactive Distribution:
How the Federal Sentencing Guidelines for Distribution of Child
Pornography Fail to Effectively Account for Peer-to-Peer Networks,
73 Ohio St. L.J. 1485, 1488 (2012)). In addition to allowing a
user to download files, file-sharing programs also make files on
a user's computer accessible for download by other users. Notably,
[a] crucial aspect of peer-to-peer file-sharing is that
the default setting for these networks is that
downloaded files are placed in the user's "shared"
folder, which allows others in the network to access the
files. A user must affirmatively change his network
setting to disable this sharing feature.
Id. (quoting Audrey Rogers, From Peer-to-Peer Networks to Cloud
Computing: How Technology is Redefining Child Pornography Laws, 87
St. John's L. Rev. 1013, 1031 (2013)).
When first downloaded, Ares, the file-sharing program
used by appellant, "sets up a shared folder on the computer where,
by default, it automatically places all subsequent [Ares]
downloads. Once a file is [automatically] placed in the shared
folder, it is immediately available for further dissemination."
United States v. Carroll, 886 F.3d 1347, 1350 (11th Cir. 2018).
That is, "[u]nless an Ares user changes the default settings or
deliberately moves files out of the shared folder, downloaded files
[from Ares] will remain freely accessible to anyone else on the
Ares network." Id.
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B. The "Knowing" Distribution Guideline Enhancement
In general, due to the pervasive use of file-sharing
programs to access child pornography, the sentencing guideline
enhancements for the non-commercial distribution of child
pornography may be applied to the majority of non-production child
pornography offenders. See U.S. Sentencing Comm'n, Report to the
Congress, at 149-50, 154-55. Until the end of 2016, the sentencing
guidelines provided for a two-level enhancement in child
pornography cases "[i]f the offense involved . . . [d]istribution."
Compare U.S. Sentencing Guidelines Manual § 2G2.2(b)(3)(F) with
U.S. Sentencing Guidelines Manual § 2G2.2(b)(3)(F) (as amended
Nov. 2016).3 Courts generally agreed that a user of a peer-to-
peer file-sharing network need not take affirmative steps to share
files with other users in order to have "distributed" child
pornography. See, e.g., United States v. Chiaradio, 684 F.3d 265,
282 (1st Cir. 2012) (accepting the analogy of a peer-to-peer file-
sharing program user to a self-serve gas station owner in holding
that a person may "passive[ly]" distribute files by making them
available for download by other users).
However, the circuits were split on whether the
enhancement required some mens rea despite the absence of language
3 If the offense involves distribution in exchange for any
type of payment or distribution to a minor, the guidelines provide
for a greater enhancement. See U.S.S.G. § 2G2.2(b)(3)(A)-(E).
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to that effect in the guideline. Several circuits held that the
enhancement required evidence that a defendant knew about the file-
sharing properties of the program he was using to obtain child
pornography. See, e.g., United States v. Baldwin, 743 F.3d 357,
361 (2d Cir. 2014); United States v. Robinson, 714 F.3d 466, 468
(7th Cir. 2013); United States v. Layton, 564 F.3d 330, 335 (4th
Cir. 2009). Other circuits held that there was no knowledge
requirement, or that knowledge could be presumed from a defendant's
use of a file-sharing program. See, e.g., United States v.
Abbring, 788 F.3d 565, 567 (6th Cir. 2015); United States v. Creel,
783 F.3d 1357, 1360 (11th Cir. 2015); United States v. Baker, 742
F.3d 618, 621 (5th Cir. 2014); United States v. Ray, 704 F.3d 1307,
1311-12 (10th Cir. 2013); United States v. Dodd, 598 F.3d 449,
451-52 (8th Cir. 2010).
In late 2016, the guideline enhancement was amended to
specify that it applied only where a defendant "knowingly engaged
in distribution." U.S.S.G. § 2G2.2(b)(3)(F) (emphasis added). In
amending the guideline, the Sentencing Commission noted that some
file-sharing programs "employ a default file-sharing setting" and
that a user has to "'opt out' of automatically sharing files by
changing the default setting to limit which, if any, files are
available for sharing." U.S.S.G. App. C, Amend. 801 (eff. Nov. 1,
2016). The Commission acknowledged the existing uncertainty
regarding mens rea and stated that it was "generally adopt[ing]
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the approach of the Second, Fourth, and Seventh Circuits," which
all required evidence of a defendant's knowledge of a program's
file-sharing properties. Id.
In codifying this approach, the Commission rejected both
the approach of those circuits that did not require evidence of
knowledge and the approach of those circuits that had held that
knowledge of a program's file-sharing properties "may be inferred
from the fact that a file-sharing program was used, absent
'concrete evidence' of ignorance," because "the whole point of a
file-sharing program is to share." Id. (quoting Dodd, 598 F.3d at
452, and Abbring, 788 F.3d at 567). After the amendment, then,
application of the enhancement requires specific evidence of a
defendant's "knowledge that by using a peer-to-peer file-sharing
program, his child pornography was made accessible to others."
United States v. Cates, 897 F.3d 349, 359 (1st Cir. 2018). The
simple fact that a defendant used a file-sharing program does not
constitute evidence of knowledge.4 In other words, it is not
enough for the government to assert that a defendant "was using a
peer-to-peer file sharing program and 'that is what it is.'"
Carroll, 886 F.3d at 1353.
4
To the extent knowledge can be established by evidence of
recklessness, the district court did not rely on this theory, and,
in any event, my analysis would not differ if the government was
pressing a recklessness theory.
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The question then becomes what constitutes evidence of
knowledge to support the enhancement. In Cates, we described a
substantial amount of evidence of knowledge. Specifically, there
was evidence that the defendant (1) had used a file-sharing program
to download child pornography for three years; (2) had created a
"specialized configuration" "by which files downloaded from [the
file-sharing program] would bypass his master hard drive and be
saved automatically to the 'sharing folder' housed on a subservient
drive"; and (3) had, in his interview with authorities,
"demonstrated considerable familiarity with [the program]'s
file-sharing properties" and acknowledged that he could turn off
the program's default setting of automatic sharing. Cates, 897
F.3d at 359.
The Eleventh Circuit's recent treatment of the amended
guideline in relation to the Ares program is also instructive. In
Carroll, the court reversed a distribution conviction "because the
government failed to put forth any evidence that [the defendant]
knew downloaded files were automatically placed into a shared
folder accessible to the Ares peer-to-peer network." Carroll, 886
F.3d at 1349 (emphasis added). The only proffered evidence of
knowledge in Carroll was the defendant's use of the Ares program
and the presence of files automatically being placed into, and
shared from, the Ares-created folder. Id. at 1353. The court
considered this to be no evidence at all of the defendant's
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knowledge. In a subsequent case affirming an application of the
knowing distribution enhancement, the Eleventh Circuit
distinguished Carroll by noting, inter alia, that the defendant in
the present case "admitted to knowing how file sharing programs
like A[res] worked" and had continued to share child pornography
after being told by the FBI "how A[res] file sharing worked."
United States v. Alpizar, No. 16-15170, 2018 WL 3598624, at *6
(11th Cir. July 26, 2018).
In sum, Cates, Carroll, and Alpizar demonstrate the type
of evidence needed to apply the "knowing" distribution enhancement
in a case involving a program that automatically shares downloaded
files -- that is, some specific evidence that the defendant used
the program in a manner demonstrating his awareness of the
program's file-sharing properties. Without this evidence, a court
risks applying the enhancement based solely on a defendant's use
of a file-sharing program, which is the approach explicitly
rejected by the Sentencing Commission.
II.
Against this backdrop, I turn to the record before the
district court. The government's undisputed version of the facts,
which was incorporated into the plea agreement, provides the only
description in evidence of appellant's collection of child
pornography on his two computers. It states:
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[D]efendant's Sony VAIO laptop . . . was found to
contain 26 child sex abuse images. Additionally,
it contained evidence of: a) 2,578 child sex abuse
files having been downloaded and then erased; b) 71
incomplete downloads of child sex abuse files; c)
74 child sex abuse files being shared on "Ares[";]
and, d) 23 child sex abuse-related search terms
having been entered by the defendant.
[D]efendant's Compaq desktop computer . . . was
found to contain 1,046 child sex abuse images.
Additionally, it contained evidence of: a) 802
child sex abuse files having been downloaded and
then erased; b) 162 incomplete downloads of child
sex abuse files; c) 15 child sex abuse files being
shared on "Ares[";] and, d) 48 child sex
abuse-related search terms having been entered by
the defendant.5
In addition to this description of the child pornography that
appellant possessed, there is no dispute that (1) he searched for
and downloaded child pornography; (2) he downloaded the Ares file-
sharing program onto his two computers; (3) a certain number of
child pornography files were "being shared on Ares," likely meaning
that these files were in the Ares folders on each device; and (4)
a smaller number of files in the case of his laptop, and a larger
number of files in the case of his desktop, were housed elsewhere
on the computers.6 Finally, although this aspect of the Ares
5 I assume that there is no meaningful distinction between
the government's use of "images" and "files" in this case,
considering that neither my colleagues, nor the district court,
nor the parties suggest any such distinction. For consistency, I
refer to the child pornography on appellant's computers as "files."
6 To the extent there is any ambiguity in the government's
description of appellant's child pornography collection, I note it
follows logically that the files "contain[ed]" on appellant's
computers are different from the files "being shared on 'Ares.'"
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program is not made explicit in the record, there is no dispute
that the program, when first downloaded, "sets up a shared folder
on the computer where, by default, it automatically places all
subsequent downloads" from Ares and that files automatically
placed in this folder are freely accessible to other users.
Carroll, 886 F.3d at 1350.
On this record, the district court concluded, "[t]he
selection on both devices of a specific number of child sex abuse
files to be shared on the 'Ares' network out of the thousands
downloaded by defendant [indicates] that he applied his computer
knowledge to pick and choose the particular contraband that he
wanted to exchange through the 'Ares' file-sharing program." Based
on this finding, plus a finding that appellant is a "sophisticated
and long-time computer user," the court concluded that "all
indications are that [he] used a shared folder that he knew others
could access in order to download child pornography files."
Although the majority states that the court "was entitled to draw
the plausible inferences that led to a finding of knowledge,"
appellant contends that there is no evidence to support the
district court's inference that he "picked and chose" certain files
For example, appellant's laptop was "found to contain" 26 files,
but there were 74 files being shared on Ares, demonstrating that
the files being shared were not a subset of the files "contain[ed]"
on his computers.
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to share through Ares, the inference essential to the district
court's finding of knowledge. I agree.
III.
Given that a certain number of child pornography files
were on appellant's computers but not in the Ares folders, the
district court inferred that he intentionally placed certain files
in the Ares sharing folders, or kept certain files in the folders
while removing others. The court further inferred that he
performed this allocation because he was aware of the Ares
program's file-sharing properties. As the district court
implicitly saw it, there is no reason to intentionally place or
keep files in the sharing folders other than to share these files
with other Ares users.
There is no evidence to support this inference of
allocation, however, because there is no evidence about the origin
of the child pornography files on appellant's computers. The
district court's inference would be supported if there was any
evidence that appellant moved files between the Ares folders and
other locations on his computers. Yet for all we know, appellant
acquired all the files outside the Ares folders from a source other
than Ares. In that case, all the files in the Ares folders could
have been automatically placed there when they were downloaded
through Ares and appellant would not necessarily have moved any
files into or out of the Ares folders.
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To be sure, there is a plethora of evidence that could
have illuminated the allocation issue: for example, computer
forensic examinations can readily ascertain the origin of files or
how long they have been on a computer. See Sergeant Josh Moulin,
What Every Prosecutor Should Know About Peer-to-Peer
Investigations, Child Sexual Exploitation Program Update Volume 5,
Number 1, 2010, National District Attorneys Association, National
Center for Prosecution of Child Abuse (describing the detailed
evidence about a defendant's use of a file-sharing program,
manipulation of default settings, and handling of files in general
that can be ascertained through a computer forensic examination).
If we knew that any of the files stored outside the Ares folders
were downloaded through Ares, for example, this would be evidence
that appellant intentionally removed certain files from the Ares
folders. Similarly, if we knew that any of the files inside the
Ares folders were not originally downloaded through Ares -- if
these files were obtained through another source, for example, via
the sharing of files on external drives or even through a different
file-sharing program -- this would be evidence that he
intentionally placed certain files into the Ares folders. This
type of evidence, however, is completely absent from the record.
Thus, the district court's foundational inference -- that
appellant intentionally allocated files between the Ares folders
and other locations on his computers -- is pure speculation.
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Simply put, there was no evidence before the district court that
appellant "used the program in a manner that indicated an
understanding of how the program worked," as my colleagues contend.
We must also remember that references in our sentencing
enhancement decisions to "plausible inferences" cannot obscure the
requirement that the government has to prove the applicability of
a sentencing enhancement by a preponderance of the evidence. See
United States v. Lacouture, 835 F.3d 187, 189-90 (1st Cir. 2016).
Since the inference of allocation is at the heart of the district
court's finding that appellant had knowledge of the file-sharing
properties of the Ares program, the absence of any evidence to
support that inference is even more striking. Moreover, a
traditional rationale for deference to a district court's findings
-- its ability to weigh credibility -- has no relevance here. We
are only evaluating the district court's logic, not any assessment
of credibility. Cf. United States v. Brum, 948 F.2d 817, 819 (1st
Cir. 1991) ("We review the challenged findings of fact for clear
error, mindful of the deference to which the sentencing court's
superior opportunity to assess witness credibility is entitled.").
The contrast between this case and cases like Cates and
Carroll is telling. In Cates, we highlighted the veritable
mountain of specific evidence indicating that the defendant was
aware of a program's file-sharing properties. See 897 F.3d at
359-60. In Carroll, the Eleventh Circuit rejected an application
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of the enhancement that was based solely on the fact that the
defendant was using Ares. See 886 F.3d at 1353-54. Here, the
record is devoid of the type of evidence we highlighted in Cates.
And when we scrutinize the district court's reasoning, it is clear
that the court, in applying the enhancement, essentially relied on
the bare fact that appellant was using Ares.
Without the unsupported inference that appellant "picked
and chose" files to place in the Ares folders for sharing, all
that we are left with is the district court's finding that
appellant possesses a level of general computer proficiency. I
agree that a defendant's "advanced computer knowledge" may be
relevant to the knowledge inquiry. However, I am not aware of any
authority in our case law for the proposition that some level of
general computer proficiency on a defendant's part is enough, on
its own, to support a finding of knowledge for purposes of the
enhancement. But see United States v. Ryan, 885 F.3d 449, 453
(7th Cir. 2018)(affirming a knowing distribution conviction
because "[t]he government . . . presented evidence of [defendant]'s
sophisticated understanding of computers and software"). Even the
majority does not contend that a defendant's general computer
knowledge, such as a degree in computer science, is sufficient to
support the enhancement. Yet once the unsupported inference of
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allocation is removed from the equation, the evidence of
appellant's general computer knowledge is all that remains.7
IV.
The district court applied the "knowing" distribution
enhancement based on an inference of allocation that is not
supported by the record. Without any evidence about the origin of
the various files on appellant's computers, there is no evidence
that he intentionally moved files into or out of the Ares folders.
The court's inference of allocation was thus pure speculation.
Once this unsupported inference is put aside, it is apparent that
the district court essentially applied the enhancement because
appellant was using a file-sharing program. That is precisely the
approach rejected by the Sentencing Commission. My colleagues
tacitly accept this discredited approach. I would hold that the
district court clearly erred in applying the enhancement.
7 Even if general computer proficiency could theoretically
support application of the enhancement on its own, appellant's
level of computer proficiency would fall short. He completed a
bachelor's degree in computer science and an associate's degree in
computer networks a decade ago. He further indicated he is
"skilled in computers" and "expressed interest in completing a
Master's Degree in Computer Networks." However, he also expressed
interest in pursuing formal training as a hairstylist, and his
most recent job before his arrest was as a "receiving supervisor"
at a "produce packing company . . . earning approximately $500
weekly." In other words, there is little to no evidence that he
possessed "advanced computer knowledge" or was especially
proficient in current computer technology, let alone file-sharing
programs such as Ares. There is also no record evidence that he
had used Ares for a significant period of time and thus had an
opportunity to develop familiarity with the program.
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