District Court Failed to Make Sufficient Findings to Support Enhancement for Distributing Child Pornography

This summary order holds that the district court’s factual findings were not adequate to support a two-level enhancement under U.S.S.G. 2G2.2(b)(3)(F) for distributing child pornography.

Reed was convicted of one count of receiving child pornography and one count of possessing child pornography. He was sentenced to concurrent terms of ten years of imprisonment on each count.

At sentencing, the district court found that more than 600 files of child pornography were located in “peer-to-peer” sharing folders on the defendant’s computer, and that these files were “being offered for sharing.” On this basis, the court enhanced the defendant’s offense level by two levels under U.S.S.G. 

2G2.2(b)(3)(F), which applies if the offense involved “distribution” of child pornography.

The Circuit held that, under United States v. Reingold, 731 F.3d 204, 229 (2d Cir. 2013), available here, the distribution enhancement requires proof of mens rea and applies only if the defendant “knowingly placed” child pornography files into shared folders. Here, while the evidence arguably supported an inference that Reed knew that he was placing files into peer-to-peer sharing folders, the district court did not make a finding on that disputed subject. Thus, a remand was required.