Sentencing — child pornography

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United States Court of Appeals For the Seventh Circuit

Criminal

Sentencing — child pornography

To impose a sentence enhancement under U.S.S.G. 2G2.2(b)(3)(F), for distributing child pornography, the government must present evidence that the defendant knew the files could be shared with other persons.

“[N]one 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 automatically 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 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.”

Vacated and Remanded.

12-2015 U.S. v. Robinson

Appeal from the United States District Court for the Southern District of Illinois, Gilbert, J., Posner, J.