The sentencing enhancement for distributing child pornography cannot be applied unless a judge finds the defendant knew his computer file-sharing program made the pornography available to others, a federal court held Friday.
Clarifying the standard for a two-level enhancement under the federal sentencing guidelines, the U.S. Court of Appeals for the Second Circuit vacated the sentence of a Vermont man who claimed he didn’t know his “peer-to-peer” or “P2P” software would make files available to other viewers of child pornography.
Department of Homeland Security agents who raided the home of self-described “survivalist” Dennis Wade Baldwin in 2012 found thousands of images of child pornography on his two computers as well as a cache of weapons. Baldwin said he had been “stockpiling” guns “for when the world goes to hell.”
Baldwin pleaded guilty to possession of child pornography as well as a gun charge and, at sentencing in 2013, U.S. District Judge William Sessions in Vermont assessed the two-level enhancement. Baldwin was ordered to prison for seven years and three months—the low end of a guidelines range—with a high end of nine years.
Baldwin’s attorney, Assistant Federal Public Defender Steven Barth, had argued against the enhancement and asked the judge to impose a prison term of three years and six months.
But Assistant U.S. Attorney Nancy Creswell argued that a different guidelines range applied, saying Baldwin’s crime warranted a sentence ranging from nine years to 11 years and three months. She told the court that Baldwin knew what he was doing, that he learned about peer-to-peer software on the Internet and clearly downloaded it himself.
“It didn’t get on his computer by accident … and there isn’t anyone else—certainly his mother didn’t put it on his two computers,” she said in a transcript.
Sessions told the lawyers he was imposing the enhancement under §2G2.2(b)(3)(F) for obvious reasons.
“[H]e should very well have known that when you have a peer-to-peer sharing software system, that means that you can get images from others and they can get images from you,” the judge said. “It’s almost self-evident at that particular point.”
But on Friday, Judges Jose Cabranes (See Profile), Robert Sack (See Profile) and Gerard Lynch (See Profile) said finding that something was “self-evident” was not enough. The judges articulated the knowledge required for a defendant to merit the enhancement. The case is United States v. Baldwin, 13-163-cr.
In a per curiam opinion, the court cited United States v. Reingold, 731 F.3d 204 (2d Cir. 2013), where the circuit held the enhancement applies when a defendant “knowingly place[es] child pornography files in a shared folder on a peer-to-peer file-sharing network.”
The Reingold court said it applies “without regard to whether the defendant’s primary purpose in placing child pornography files in a file-sharing program was to receive or distribute child pornography.”
On Friday, the judges said they were vacating Baldwin’s sentence as they clarified Reingold.
“We hold that, although the defendant’s intent is irrelevant for an enhancement” under the statute, “a district court must find that a defendant knew that his use of P2P software would make child-pornography files available to other users,” the court stated.
The judges rejected the government’s argument that Sessions had made the requisite finding.
“The District Court here found that Baldwin should have known that his files containing child pornography would be shared, but expressly declined to find that he in fact knew,” they said.
The circuit remanded the case to Sessions, saying it was not precluding the district judge “from making a finding of knowledge on remand” but expressed no opinion on whether he should or shouldn’t.