United States v. Larry Robinson

In the
United States Court of Appeals
For the Seventh Circuit
No. 12-2015
U NITED S TATES OF A MERICA,
Plaintiff-Appellee.
v.
L ARRY D. R OBINSON,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Illinois.
No. 4:11 CR 40055-011-JPG—J. Phil Gilbert, Judge.
A RGUED M ARCH 5, 2013—D ECIDED A PRIL 9, 2013
Before P OSNER, K ANNE, and W ILLIAMS, Circuit Judges.
P OSNER, Circuit Judge. A jury convicted the defendant
of possessing child pornography, and the judge sen-
tenced 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 guide-
lines prescribe if the defendant, though not charged
with the separate offense of distributing child pornogra-
2 No. 12-2015
phy, 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 sen-
tence 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 de-
fendant 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, applica-
tion 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 know-
ing 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
No. 12-2015 3
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 deci-
sion 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 pornog-
raphy—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 super-
vised 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 op-
portunity 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. And the Sex Offender Registration and
Notification Act imposes additional post-release restric-
tions. 42 U.S.C. §§ 16901 et seq. The Act requires each
state to maintain a sex offender registry, § 16912, and
4 No. 12-2015
sex offenders to register in the state in which they live.
§ 16913. Illinois classifies persons convicted of child-
pornography offenses as sex offenders and thus
requires them to register, 730 ILCS 150/2(B)(1); 720 ILCS
5/11-20.1(a)(2), and forbids them to live within 500 feet
of a school, park, or playground, 730 ILCS 150/8(a);
720 ILCS 5/11-9.3(d)(1)(i), (d)(2)(i), communicate with a
minor other than the registrant’s child or ward, 720
ILCS 5/11-9.3(b-20), or—of particular relevance to this
case—have access to social networking websites while on
supervised release. 730 ILCS 5/5-6-3.1(t).
The court in the Ray case based its ruling that the distri-
bution guideline does not require that the defendant
know that he’s a distributor on the fact that the same
application note that defines “distribution” defines
“distribution to a minor” as “knowing distribution to an
individual who is a minor at the time of the offense.”
U.S.S.G. § 2G2.2, application note 1 (emphasis added).
Presumably the required knowledge is that the recipient
is a minor, since in the absence of “knowing” it might
well be assumed that liability is strict—that it’s no
defense that the minor looked like an adult—which was
the traditional rule in statutory rape. To assume that
by adding “knowing” to this definition the Sentencing
Commission signaled that it’s not required elsewhere
in the guideline is a stretch.
In U.S. Sentencing Commission, Report to Congress:
Federal Child Pornography Offenses 33, 324 (Dec. 2012),
www.ussc.gov/Legislative_and_Public_Affairs/Congress
ional_Testimony_and_Reports/Sex_Offense_Topics/2012
No. 12-2015 5
12_Fed eral_Child _Pornography_Offenses/index.cfm
(visited March 20, 2013), the Commission noted the
disagreement between Ray and Durham and remarked
that “the guideline could be amended to better dis-
tinguish between more and less culpable distribution
conduct.” The Commission itself could of course amend
the guidelines to make clear that knowledge is or is
not required. But because of the strong influence that
Congress traditionally has exerted on the Commission
with respect to child pornography guidelines, see
United States v. Garthus, 652 F.3d 715, 721 (7th Cir. 2011);
Note, John Gabriel Woodlee, “Congressional Manipula-
tion of the Sentencing Guideline for Child Pornography
Possession,” 60 Duke L.J. 1015, 1032-33 (2011), the Com-
mission has been reluctant to amend those guide-
lines without congressional guidance—which it has
sought on past occasions. See U.S. Sentencing Commission,
Report to the Congress: Sex Offenses Against Children 39-
41 (June 1996), www.ussc.gov/Legislative_and_Public_
A ffairs/C on gressional_Testim ony_and_Reports/
Sex_Offense_Topics/199606_RtC_Sex_Crimes_Against_
Children/199606_RtC_SCAC.PDF (visited March 20,
2013). Congress responded to the request in the Protec-
tion of Children from Sexual Predators Act of 1998, Pub.
L. No. 105-314, 112 Stat. 2974, 2982, § 506.
A person who downloads files from a file-sharing
program might, though knowing that the downloaded
files were accessible by other subscribers to the pro-
gram, not realize that this made him a “distributor.” And
while persons generally are charged with knowledge
of the criminal law (though with exceptions, see, e.g.,
6 No. 12-2015
Cheek v. United States, 498 U.S. 192, 199-201 (1991); Lambert
v. California, 355 U.S. 225, 228 (1957)), it is not clear
whether this presumption extends to advisory sen-
tencing guidelines. United States v. Ortiz-Graulau, 526 F.3d
16, 19 (1st Cir. 2008), intimates that it may not. See also
United States v. Chavez-Diaz, 444 F.3d 1223, 1230 (10th
Cir. 2006). No matter; the defendant has made no issue
of his knowledge of the meaning of “distribution,” so
we limit our consideration to the question of his knowl-
edge (a question of fact) that the files he downloaded
were accessible by other users of the two programs.
The presentence investigation report, the accuracy of
which the defendant does not challenge, states that in
an interview by law enforcement officers he admitted
being “aware that LimeWire and FrostWire were
programs designed to share files and videos,” but said
that “he did not realize he was distributing child pornog-
raphy through these programs.” The second part of
the statement is ambiguous; it is unclear whether he
meant he didn’t understand that making files accessible
is a form of distribution, or that, while knowing that
the programs are designed for sharing, he didn’t know
that the files he had downloaded were shareable. The
report further states that he “had settings to allow shar-
ing,” but it is unclear whether this means more than
that the two programs that he downloaded had settings
that could allow sharing.
The district judge did not mention knowledge in his
very brief sentencing statement. But the defendant’s
lawyer had not objected to anything in the presentence
No. 12-2015 7
report, and one thing in it was a recommendation for
the two-level enhancement for distribution. We can
reverse therefore only if the error in imposing that en-
hancement without a judicial finding of knowledge can
be said to be a “plain” error.
A judge in sentencing is required to calculate the ap-
plicable guidelines range correctly, though no longer
bound to adhere to it. If, as we have just held, knowledge
that one’s files are accessible online is a prerequisite for
a sentence enhancement for distribution, then if con-
jecture is the only basis for an inference of knowledge,
the defendant is entitled to be resentenced.
In arguing that he knew the files he downloaded on
LimeWire and FrostWire were shareable, the govern-
ment relies primarily on the presentence investigation
report, which as we said is ambiguous. And there was
evidence at trial that the defendant is barely computer
literate. The government mentions briefly and without
particulars that it presented a Power Point demonstra-
tion of peer-to-peer file sharing at the trial, but, remark-
ably, does not bother to tell us what the demonstra-
tion revealed. The defendant’s lawyer does not mention
the demonstration. Yet it is the key evidence bearing on
the defendant’s knowledge.
The demonstration, which is on a computer disk in the
record, consists basically of four computer screens in the
FrostWire program. We have reproduced the screens
in the appendix to this opinion. (Unfortunately the repro-
ductions are not very legible.) The opening screen intro-
duces the program and provides search capability. The
8 No. 12-2015
top of the screen reads “FrostWire: Share it with your
friends.” The bottom left-hand corner of the screen con-
tains the legend “View My 0 Shared Files.” The second
screen provides search and download information, and
on the third screen “View My 0 Shared Files” changes
to “View My 1 Shared Files” after a box on the screen
reveals that an image entitled “sunset” has been down-
loaded. Clicking on the word “sunset” in the box generates
the image, which is shown on the fourth screen.
To make sense of these references to sharing requires
some computer savvy. For none of the screens explains
what files are “shared files.” When “0 Shared Files”
changes to “1 Shared Files” a person reading the screen
might well surmise that the reason for the change was
the downloading of the “sunset” file—that it was now a
shared file and that shared files are accessible automati-
cally to other persons online. But someone who knew
little about computers and had never seen a file-sharing
program before might not realize that. And while at the
time the defendant downloaded child pornography
the default settings on the FrostWire program made
all downloaded files shared files, he may not have
realized that either. He may have thought that to make
his files shareable would require him to click “View
My [] Shared Files.” Had that been true, he would not
have been distributing downloaded files within the
meaning of the distribution guideline unless he did
click on that box. He may have thought it was true,
or simply not have thought about the question at all.
The government has, we conclude, clearly failed as yet
to prove that the defendant knowingly made files of
No. 12-2015 9
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.
V ACATED AND R EMANDED.
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