United States v. John Dennis Clark

JANE B. STRANCH,

concurring.

Although I join the majority opinion to affirm, I am compelled to note that the government bears the burden to prove, by a preponderance of the evidence, the applicability of the two-level sentencing enhancement for distribution of child pornography under U.S.S.G. § 2G2.2(b)(3)(F). See United States v. Williams, 709 F.3d 1183, 1186 (6th Cir.2013). In United States v. Conner, 521 Fed.Appx. 493 (6th Cir.2013), and United States v. Darway, 255 Fed.Appx. 68 (6th Cir.2007), we upheld similar sentencing enhancements because the proof demonstrated that the defendants knowingly used peer-to-peer file-sharing programs such as LimeWire to distribute child pornography images on the internet. Here, the government’s evidence that Clark knowingly used Flickr to distribute child pornography was very thin, but the enhancement is warranted because Clark admitted distribution at his guilty plea hearing. Accordingly, I concur.