Last week, the Second Circuit vacated the sentence in United States v. Bennett, No. 15-0024 (“Opinion”). The Court held that, in order to justify the 5-level enhancement under U.S.S.G. 2G2.2(b)(3)(B) for distribution of child pornography “for the receipt, or expectation of receipt, of a thing of value,” “the Government must advance specific, individualized evidence that [a defendant] provided access to his collection of child pornography to another user with the expectation that that user would provide similar access to other child-pornography files.” Opinion at 15. In this case, the Court held the 5-level enhancement was justified because the defendant had engaged in the quid pro quo exchange of passwords protecting child pornography files with other users. Despite finding that the enhancement applied, the Circuit vacated the sentence and remanded for resentencing because the District Court (Sullivan, J.) failed properly to calculate the applicable guideline to reflect the fact that, because the Sentencing Guidelines recommended a sentence above the statutory maximum, the applicable guideline became the statutory maximum.
Although the remand was based on the statutory maximum issue, the bulk of the opinion dealt with the application of U.S.S.G. 2G2.2(b)(3)(B) for distribution of child pornography “for the receipt, or expectation of receipt, of a thing of value.” The defendant argued that his conduct was “simple file sharing” and did not rise to the level of a particular exchange of child pornography for a thing of value. Application Note 1 to U.S.S.G. 2G2.2(b)(3)(B) defines distribution to include “any transaction, including bartering or other in-kind transaction, that is conducted for a thing of value, but not for profit,” and further defines “thing of value” as “anything of valuable consideration [including] child pornographic material received in exchange for other child pornographic material bartered in consideration for the material received.” See Opinion at 12. If a defendant distributes child pornography not for a thing of value, the distribution results only in a two-level increase.
The issue of whether, and under what circumstances, file-sharing technology can trigger the five-level enhancement under U.S.S.G. 2G2.2(b)(3)(B) was an issue of first impression in the Second Circuit. See Opinion at 13. The Court declined to adopt a per se rule that “any use of file sharing triggers the five-level enhancement.” Id. at 14. While “[s]ome individuals undoubtedly use file-sharing software to engage in exchanges of illicit pornographic material . . . individuals need not utilize file sharing as a bargaining platform.” Id. The Court quoted the Eleventh Circuit’s opinion in United States v. Spriggs, 666 F.3d 1284, 1288 (11th Cir. 2012), explaining “[f]ile-sharing programs exist to promote free access to information” and “[g]enerally . . . do not operate as a forum for bartering.”
File sharing programs, the Second Circuit explained, “facilitate either approach” i.e., free access to information or bartering, and “individuals may or may not restrict access to their files through password protection and, even if they do maintain a password, nothing restrains them from making their password generally available as a gift as opposed to as consideration in exchange.” Opinion at 14. Even if most users of Gigatribe, the file sharing program used in this case, use it as a forum for bartering, courts cannot ignore the possibility of other uses in determining whether to apply the enhancement under U.S.S.G. 2G2.2(b)(3)(B). In other words, the sentencing court has to consider how a defendant actually used the file sharing program, and may not apply the enhancement simply because some, or even most, program users share files with the expectation of receiving other users’ files in return. Id. For the enhancement to apply, “the Government must advance specific, individualized evidence that [a defendant] provided access to his collection of child pornography to another user with the expectation that that user would provide similar access to other child-pornography files.” Id. at 15.
In this case, the defendant’s quid pro quo exchange of his password (and access to his child pornography) for other users’ passwords (and access to their child pornography) was sufficient to trigger the five-level enhancement under U.S.S.G. 2G2.2(b)(3)(B). Here, at least one so-called “pass-for-pass” exchange came after the defendant and another user “discussed their pornography preferences before agreeing to provide each other access to their child-pornography files,” and “upon having trouble downloading the other user’s pornography, [the defendant] complained of not having received his bargained-for material.” Id. at 15. The Second Circuit agreed with the District Court that the “exchange of passwords, after a brief exchange as to the interests of the users, would seem to be exactly what [U.S.S.G. 2G2.2(b)(3)(B) cmt. n. 1] has in mind.” Id.
The Second Circuit nevertheless vacated the sentence and remanded for resentencing based on the District Court’s plain error in failing to calculate the statutory maximum as the applicable guideline. The District Court calculated a guideline range of 135-168 months. Although the District Court acknowledged that the statutory maximum was ten years, it “continued to make reference to the Guidelines range as being 11 to 14 years’ imprisonment.” Opinion at 18. The District Court committed plain error by not indicating that the statutory maximum and the guideline “were the same: ten years.” Id. (emphasis in original). The error affected the defendant’s substantial rights because of the “anchor[ing]” effect of the guidelines. Id. at 20. The Second Circuit explained that the miscalculated guideline may well have impacted the District Court’s view of what an appropriate sentence would be, “as though it were the benchmark for any variance.” Id. at 19, 20 (quoting United States v. Dorvee, 616 F. 3d 174, 181 (2d Cir. 2010). “Indeed, [e]ven if the sentencing judge sees a reason to vary from the Guidelines, if the judge uses the sentencing range as the beginning point to explain the decision to deviate from it, then the Guidelines are in a real sense the basis for the sentence.” Id. at 19 (quoting Molina-Martinez v. United States, 136 S. Ct. 1338, 1346 (2016) (emphasis in Molina-Martinez).
The Second Circuit did not reach the claim that the sentence was substantively unreasonable, taking care to “emphasize that we are taking no position, at this time, on Bennett’s substantive Dorvee contention.” Opinion at 20 & n.9.
The main take-away from the case is the proof necessary to justify the five-level enhancement under U.S.S.G. 2G2.2(b)(3)(B). Although the Court found that the five-level enhancement was appropriate in this case, the opinion is clear that its application is not automatic simply because a defendant uses a peer-to-peer file sharing network, provides a password to another user, or receives another user’s password. Counsel should be prepared to challenge the application of the five-level enhancement in cases that do not involve a quid pro quo exchange of passwords and subsequent access to pornography or the bartering of pornographic material in consideration for access to other pornographic material. The fact that peer-to-peer file-sharing networks can work that way is not enough. There must be “specific, individualized evidence” of the bargained-for exchange.
NB: The Federal Defenders represents Mr. Bennett in the district court and on appeal.