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United States v. Lawrence

United States Court of Appeals, Fifth Circuit

April 8, 2019

UNITED STATES OF AMERICA, Plaintiff - Appellee
JOSEPH BRET LAWRENCE, Defendant-Appellant

          Appeal from the United States District Court for the Southern District of Texas

          Before WIENER, DENNIS, and OWEN, Circuit Judges.


         Defendant-Appellant Joseph Bret Lawrence pleaded guilty to receipt and possession of child pornography in violation of 18 U.S.C. § 2252A(a)(2)(B) and (a)(5)(B). He did not plead guilty to the additional charge of distributing child pornography, but the district court applied a two-level sentence enhancement under U.S.S.G § 2G2.2(b)(3)(F) for such distribution.

         This court previously held that § 2G2.2(b)(3)(F) did not require scienter: A defendant's use of a peer-to-peer file sharing network triggered the enhancement, with or without the defendant's knowledge.[1] Congress amended that guideline in 2016 to require the "knowing" distribution of child pornography, but we have not addressed the amended guideline in a published opinion. We do so now, and we hold that the mere use of a peer-to-peer network is not enough to trigger § 2G2.2(b)(3)(F)'s enhancement. That enhancement may apply, however, if a defendant knows that his use of a peer-to-peer network made his child pornography files accessible to others online.

         The record here shows that Lawrence knew that others online could access his child pornography files. We therefore affirm his sentence for the following reasons.

         I. Facts and Proceedings

         In December 2015, an FBI agent conducted an investigation into the suspected sharing of child pornography. The agent identified a computer on the "Ares P2P [peer-to-peer] network"[2] with an IP address as a potential source of at least 127 files of suspected child pornography. That agent used a "law enforcement tool that allows single-source downloads" to download approximately three child pornography videos from Lawrence's computer.

         The suspected IP address matched the one registered to Lawrence's home. FBI agents obtained a warrant and searched his home. The agents arrested Lawrence and advised him of his Miranda rights, after which he "admitted to using the Peer-to-Peer program Ares to download child pornography." He also stated that the agents would find child pornography on his laptop, desktop computer, and other electronic devices in the residence, as well as on a laptop in his vehicle.

         Agents seized several laptops, desktop computers, hard drives, and thumb drives. "A forensic exam was performed on these devices and Agents discovered 388 videos and 4, 700 images of young children engaged in sexually explicit conduct as defined under federal law."

         Lawrence was charged with three counts: (1) distribution, (2) receipt, and (3) possession of child pornography, in violation of 18 U.S.C. §§ 2252A(a)(2)(B), (a)(5)(B), (b)(1), and (b)(2). In a written plea agreement, Lawrence pleaded guilty to the receipt and possession charges only, and the government dismissed the distribution charge. The plea agreement included a factual basis setting out Lawrence's conduct.

         The probation officer prepared a Presentence Investigation Report (PSR) that calculated a base offense level of 22 and applied several enhancements, resulting in a total offense level of 34. That offense level, combined with Lawrence's criminal history category of I, resulted in an advisory Guidelines sentencing range of 151 to 188 months.

         The PSR recommended a two-level enhancement under U.S.S.G. § 2G2.2(b)(3)(F) for distribution of child pornography. That recommendation was based on (1) Lawrence's use of the Ares peer-to-peer file sharing network, which allowed other users to access child pornography on his computer; (2) his admissions that he understood how peer-to-peer networks functioned and that he had used the Ares network for approximately four to five years; (3) his admission that he had collected child pornography online for sixteen years; and (4) his use of the Ares network actually resulted in the distribution of child pornography to an FBI agent.

         The factual basis for Lawrence's guilty plea stated that, after he was arrested, Lawrence "acknowledged an understanding of the Peer-to-Peer file sharing system" and "stated that he knew that he was distributing child pornography to others because while he was in the process of downloading child pornography, others were able to download child pornography from his shared folder." At rearraignment, Lawrence told the district court that (1) he had read and reviewed the plea agreement with his lawyer, (2) the facts set out in the factual basis were correct, and (3) he had done everything it described.

         Lawrence's counsel filed a sentencing memorandum objecting to the enhancement. Counsel contended that Lawrence did not knowingly engage in the distribution of child pornography. At sentencing, the district court overruled counsel's objection, adopted the PSR, and sentenced Lawrence to 151 months in prison and 10 years of supervised release. That sentence was at the bottom of the Guidelines range. Lawrence timely appealed.

         II. Standard of Review

         We review the district court's interpretation of the Sentencing Guidelines de novo.[3] We review its factual findings for clear error.[4]

         III. Analysis

         Lawrence contends on appeal that the district court erred by applying § 2G2.2(b)(3)(F)'s two-level enhancement. He also maintains that, because of this error, the sentence was both procedurally and substantively unreasonable.

         Before § 2G2.2(b)(3)(F) was amended in 2016, its enhancement applied "[i]f the offense involved distribution." That version of the guideline did not specify a mens rea requirement, and several courts of appeal reached different conclusions about the requisite mental state in cases involving peer-to-peer file sharing networks.[5] This court held that (1) the guideline did not contain a scienter requirement and (2) a defendant's use of a peer-to-peer file sharing network was sufficient to trigger the enhancement, regardless of whether the defendant knew that he was sharing child pornography.[6]

         Congress amended § 2G2.2(b)(3)(F) in 2016 by adding a knowledge requirement. It struck "If the offense involved distribution" and inserted "If the defendant knowingly engaged in distribution."[7] In light of that amendment, the Sentencing Commission "generally adopt[ed] the approach of the Second, Fourth, and Seventh Circuits."[8] This court has not addressed the amended guideline in a published opinion. Today's issues are (1) how much knowledge about a peer-to-peer network must a defendant have to "knowingly engag[e] in distribution" and (2) whether Lawrence's use of the Ares peer-to-peer network satisfied that standard.

         A. Knowing Distribution

         We have not specifically addressed how much a defendant must know to trigger the § 2G2.2(b)(3)(F) enhancement. The only time we have considered the amended guideline was in a recent unpublished opinion that affirmed an enhancement under § 2G2.2(b)(3)(F) because "there was evidence that the file-sharing service . . . provide[d] alerts that material will be shared, and [the defendant] did not disable the sharing capability in his settings."[9] In contrast, the record here is silent as to whether Lawrence "opted in" to sharing his files on the Ares network.

         Lawrence contends that a defendant's mere knowledge of the file sharing properties of a peer-to-peer network is not enough for the enhancement to apply. He insists that the government must establish that a defendant's "peer-to-peer system stop swap[10] was not on, or that there was no password to enter [a defendant's] computer, or that some other individual actually downloaded [child pornography] from a defendant's computer, or that a discussion occurred to agree to trade or share with someone." Lawrence argues that there must be "additional factors" or "additional evidence that is suspicious . . . and demonstrates guilty knowledge" beyond mere knowledge of how a peer-to-peer network functions. To support this contention, Lawrence cites several pre-amendment cases ...

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