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United States v. Durham

August 26, 2010

UNITED STATES OF AMERICA, PLAINTIFF - APPELLEE,
v.
MICHAEL SHANE DURHAM, DEFENDANT - APPELLANT.



Appeal from the United States District Court for the Western District of Arkansas.

The opinion of the court was delivered by: Bye, Circuit Judge.

Submitted: April 13, 2010

Before BYE, BEAM, and GRUENDER, Circuit Judges.

Michael Durham appeals the sentence of 151 months' imprisonment he received from the district court after pleading guilty to knowingly receiving child pornography in violation of 18 U.S.C. § 2252(a)(2). Durham contends the district court erred by applying a two-level enhancement for distributing child pornography pursuant to United States Sentencing Guidelines Manual (U.S.S.G.) § 2G2.2(b)(3)(F). He also challenges certain conditions of supervised release imposed by the district court. We affirm in part and reverse in part.

I.

Michael Durham was charged in an eight-count indictment with, among other counts, knowingly receiving child pornography transported through interstate commerce by a computer in violation of 18 U.S.C. § 2252(a)(2). Pursuant to a plea agreement, Durham pleaded guilty to Count I and the remaining seven counts were dismissed at sentencing.

The Presentence Investigation Report ("PSR") placed Durham in Criminal History Category I and recommended a base offense level of 22. The PSR also recommended several enhancements, including a two-level enhancement for distributing child pornography pursuant to U.S.S.G. § 2G2.2(b)(3)(F), to which Durham objected. The enhancements resulted in a total offense level of 34, after applying a three-level reduction for acceptance of responsibility.

At the sentencing hearing, the government called Detective Al Barrios, a forensic examiner with the Springdale Police Department, to testify regarding the contents of Durham's seized computer. Barrios described how Detective Mike Parks with the Fayetteville Police Department initially found Durham's IP address offering to participate in the distribution of child pornography files on Limewire, a peer-to-peer file-sharing program. In his investigation, Parks did not actually download any of the files associated with Durham's IP address, but he believed the file names were consistent with child pornography.

The officers determined the computer associated with the IP address in Parks's investigation was located at Durham's residence in Springdale, and they subsequently obtained a warrant to search the computer. After the officers executed the search warrant at Durham's residence, he admitted to using Limewire to download music and child pornography files. Barrios testified Durham's default Limewire settings had been changed to save and share files from different folders than would have automatically been set by the program. Barrios believed this indicated an action by Durham to change these settings, despite the multiple users on Durham's family computer.

Barrios also testified that files downloaded by Durham were available for others to download through Limewire, as demonstrated by logs showing the available files obtained by Parks in his investigation. However, upon executing the search warrant, the officers discovered no child pornography files contained in Durham's shared folder. Barrios indicated the files would have been in the shared folder at the time Parks conducted his investigation because Parks was able to view the file names available for download before they were removed. On cross-examination, Barrios conceded the only proof available demonstrated child pornography files were made available for upload, but there was no evidence of any files actually being uploaded from Durham's computer.

Following Barrios's testimony, Durham presented testimony from his brother, Casey Durham. Casey indicated he installed Limewire on Durham's computer with Durham's daughter and showed her how to use the program to download music. Casey also testified Durham was not present when Limewire was installed, nor was he knowledgeable about the program. According to Casey, he set up the program according to the default settings, which automatically enables file-sharing with other Limewire users.

After hearing the parties' proffered testimony and arguments, the district court concluded there was no evidence of possession with intent to distribute, but it held the distribution enhancement nonetheless applied due to Durham's use of Limewire. Based on the testimony, the court determined Durham was "very knowledgeable" about Limewire's downloading capabilities, which, in turn, lead the court to conclude he was also knowledgeable about Limewire's uploading capabilities.

The court acknowledged there was no statement from Durham demonstrating he knew others could access his materials; however, it found the lack of this direct evidence was not dispositive. Under the preponderance of the evidence standard, the court concluded the two-level enhancement for distribution applied. Durham's counsel objected and instead argued he should have received a two-level reduction for not intending to traffic in, or distribute, child pornography under U.S.S.G. § 2G2.2(b)(1). In response, the court held that provision did not apply because Durham utilized Limewire, rather than receiving child pornography through another program that did not feature automatic file-sharing.

Based on the court's ruling, the applicable Guidelines range was 151-188 months. The court ultimately imposed a sentence of 151 months' imprisonment and 10 years of supervised release. It then imposed seven special conditions of supervised release, including a condition allowing the probation office to track Durham's whereabouts through any means the office deems acceptable, a condition placing limitations on Durham's internet access, and a condition limiting Durham's contact with minors. Durham's counsel only objected to the tracking condition. He appeals the court's imposition of these conditions, as well as its application of the distribution enhancement.

II.

"We review the district court's sentencing decision for an abuse of discretion, and our review is limited to determining whether the sentence is unreasonable." United States v. Blankenship, 552 F.3d 703, 704 (8th Cir. 2009). We first ensure the district court committed no significant procedural error, such as improperly calculating the Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence. United States v. Gonzalez, 573 F.3d 600, 605 (8th Cir. 2009). We review the district court's application of the Guidelines de novo, and its factual findings for clear error. Blankenship, 552 F.3d at 704.

A. The Distribution Enhancement

Durham first contends the district court committed procedural error by applying a two-level enhancement for distribution of child pornography pursuant to U.S.S.G. § 2G2.2(b)(3)(F), and alternatively it should have imposed a two-level reduction under § 2G2.2(b)(1). Unlike prior cases considered by this court, Durham asserts he provided no admission evincing his knowledge that he was distributing child pornography over the file-sharing network. In fact, he argues, there was no evidence demonstrating any actual uploads from his computer to warrant the distribution enhancement; the only evidence showed a listing of his downloaded files was available at one point for others to access via Limewire, notwithstanding the fact that no child pornography was discovered in his shared folder upon execution of the search warrant. The use of Limewire in itself, which automatically enables file-sharing upon installation, does not provide a sufficient basis for the distribution enhancement, according to Durham. This is particularly true in this case, he claims, where the district court explicitly found no evidence of his intent to distribute, advertise, or transport child pornography.

Under Application note 1 to § 2G2.2, "distribution" is defined as follows:

"Distribution" means any act, including possession with intent to distribute, production, transmission, advertisement, and transportation, related to the transfer of material involving the sexual exploitation of a minor. Accordingly, distribution includes posting material involving the sexual exploitation of a minor on a website for public viewing but does not include the mere solicitation of such material by a defendant.

U.S.S.G. § 2G2.2(b)(3)(F) cmt. n. 1.

Before discussing whether the district court properly applied the distribution enhancement in the instant matter, we begin with a review of our pertinent cases examining the application of such enhancements in peer-to-peer network cases. In United States v. Griffin, 482 F.3d 1008, 1011 (8th Cir. 2007), this court first considered whether the expectation of receipt of child pornography through a file-sharing program constituted a "thing of value, but not for pecuniary gain" pursuant to a separate five-level distribution enhancement provided under U.S.S.G. § 2G2.2(b)(2)(B). Griffin held such bartering of child pornography over a file-sharing network was sufficient to meet the "thing of value" enhancement because "these networks exist--as the name 'file-sharing' suggests--for users to share, swap, barter, or trade files between one another." Id. at 1012-13. Accordingly, the defendant in Griffin, who admitted he downloaded child pornography and knew other users of the file-sharing program could download files from him, was appropriately sentenced based on the five-level "thing of value" enhancement. Id. at 1013.

After Griffin, other circuits that had not yet addressed the issue similarly concluded the use of a file-sharing program to download child pornography was a sufficient basis to impose a distribution enhancement under the Guidelines. United States v. Layton, 564 F.3d 330, 335 (4th Cir. 2009) ("We concur with the Seventh, Eighth, and Eleventh Circuits and hold that use of a peer-to-peer file-sharing program constitutes 'distribution' for the purposes of U.S.S.G. § 2G2.2(b)(3)(F)."). However, the Tenth Circuit expressly disagreed with Griffin in United States v. Geiner, 498 F.3d 1104, 1111 (10th Cir. 2007).

In Geiner, the court interpreted Griffin to automatically apply a distribution enhancement whenever a defendant obtains child pornography through a file-sharing program. Id. This broad interpretation of the distribution enhancement based merely on a defendant's installation of a file-sharing network ignores the language of § 2G2.2(b)(3)(B), according to Geiner, which applies an enhancement only when the defendant distributes child pornography for the receipt, or expectation of receipt, of other files on the network. Id. Geiner noted the inquiry was "a question of fact properly resolved on a case-by-case basis by the sentencing court." Id. Despite its disagreement with Griffin, Geiner upheld the application of the enhancement because the defendant nevertheless expected to receive a "thing of value," in the form of faster downloading speeds in return for his sharing of files over the network. Id.

In United States v. Stults, 575 F.3d 834, 848 (8th Cir. 2009), this court noted Geiner incorrectly interpreted Griffin to automatically apply a distribution enhancement whenever a defendant utilizes a file-sharing program to download child pornography. Stults recognized "[o]ur holding in Griffin . . . was inseparable from our conclusion that 'the government met its burden of establishing that the defendant expected to receive a 'thing of value' . . . by introducing the defendant's admissions." Id. at 848-49. The defendant in Griffin, Stults acknowledged, admitted he downloaded child pornography and he knew others could download files from him. Id. at 849. As a result, Stults concluded, "whether a defendant qualifies for the five-level enhancement must be decided on a case-by-case basis, with the government bearing the burden of pro[of]." Id. While there was no direct admission from the defendant in Stults, the court nevertheless upheld the application of the enhancement because circumstantial evidence demonstrated the defendant was technically sophisticated in computer use and understood how Limewire worked, and thus he knew he was distributing child pornography through his use of the program. Id.

In United States v. Ultsch, 578 F.3d 827, 829-30 (8th Cir. 2009), this court again recognized "Griffin did not call for automatic application of the enhancement 'based merely on a defendant's installation of file-sharing software,' as the Tenth Circuit may have suggested." Instead, Ultsch reaffirmed that application of a distribution enhancement must be decided on a case-by-case basis, with the government bearing the burden of proof. Id. at 830. The district court properly applied the five-level distribution enhancement, according to the court in Ultsch, because the defendant was a "relatively sophisticated user" of Limewire who had downloaded a "large quantity of material" and used terms indicative of his knowledge of the sharing capabilities. Id.

More recently, in United States v. Estey, 595 F.3d 836, 843 (8th Cir. 2010), this court relied on Griffin to impose a two-level distribution enhancement under U.S.S.G. § 2G2.2(b)(3)(F), rather than the five-level "thing of value" enhancement provided under § 2G2.2(b)(3)(B). Estey noted the defendant's distribution of child pornography via a file-sharing program "could have amounted to distribution under either of these subparts of U.S.S.G. § 2G2.2(b)(3)," and thus the defendant's attempt to distinguish his case from Griffin on that basis was unavailing. Id. The court was unimpressed with the defendant's suggestion that he inadvertently shared images with other file-sharing users, because "like the defendants in both Griffin and [United States v. Sewell, 457 F.3d 841 (8th Cir. 2006)], Estey knowingly placed an internet peer-to-peer file-sharing program on his computer, knew how the program operated, and shared images with other network users." Id. at 844. The court noted other users were able to retrieve the defendant's images "because Estey had child pornography in his file-sharing folder when the images were discovered by law enforcement authorities." Id. In addition, similar to the defendant in Geiner, the defendant admitted he placed images in his shared folder to enable him to download images faster. Id.

In another recent case, United States v. Dodd, 598 F.3d 449 (8th Cir. 2010), this court significantly altered the analysis applied to child pornography distribution enhancements in file-sharing cases. The defendant in Dodd asserted he lacked any intent to distribute child pornography after he downloaded the files to his computer, despite the fact that an investigator accessed and downloaded child pornography stored on his computer. Id. at 451. Neither side presented any evidence on the distribution issue at sentencing and the district court ultimately applied the two-level enhancement under § 2G2.2(b)(3)(F). Id.

On appeal, Dodd affirmed the district court's two-level enhancement under Griffin. Id. First, Dodd acknowledged the matter was a "fact-intensive inquiry." Id. According to the court, while one could hypothesize that a defendant had no knowledge of his distribution of child pornography files via the file-sharing program, "the purpose of a file sharing program is to share, in other words, to distribute." Id. at 452. As a result, Dodd imposed a new standard whereby the file-sharing defendant must show "concrete evidence of ignorance--evidence that is needed because ignorance is entirely counterintuitive." Id. Without such evidence, Dodd concluded, "a fact-finder may reasonably infer that the defendant knowingly employed a file sharing program for its intended purpose." Id. Despite the new requirement placed upon the defendant, the court reaffirmed the government retains the burden to prove the enhancement on a case-by-case basis. Id. at 452 n. 2.

Dodd noted its holding was consistent with the broad definition of "distribution" encompassed within § 2G2.2. Id. at 452. The court recognized the Sentencing Commission's recent clarification that "distribution includes posting material involving the sexual exploitation of a minor on a website for public viewing but does not include the mere solicitation of such material by a defendant." Id. According to Dodd, "[t]hese definitions confirm that distribution as defined in § 2G2.2 includes operating a file sharing program that enables other participating users to access and download files placed in a shared folder, and then placing child pornography files in that folder." Id. at 452-53.

Finally, in this court's most recent case to date on the issue, United States v. Bastian, 603 F.3d 460 (8th Cir. 2010), the court again rejected a defendant's attempt to avoid the five-level distribution enhancement. Bastian noted the government could discharge its burden of proving the enhancement through direct evidence, such as the defendant's admission, or by indirect evidence, "such as the defendant's technical sophistication in computers, inferring that he knew that by using a file-sharing network, he could download files from others who could also access his files." Id. at 466. In Bastian, the defendant used Limewire to download child pornography, but he never admitted he knew he was sharing files with others, nor was there evidence he was a sophisticated user of Limewire, according to the defendant. Id. However, the court never analyzed the application of the enhancement on these facts because it concluded any error was harmless due to the fact that the defendant's offense level would not have been affected even absent the enhancement.*fn1 Id.

Turning to the facts of this case, Durham asserts there are several distinctions from the cases discussed above. First, unlike Griffin, the government concedes it has no direct evidence of Durham's knowledge of distribution by way of any admission on Durham's part. Durham maintains he had no knowledge that other Limewire users could possibly obtain files from his computer. Likewise, he made no admissions like the defendants in Geiner and Estey to placing images in his shared folder in order to enable faster downloading capability over the network. Despite the lack of any admissions on Durham's part, our case law is clear that the government may meet its burden through indirect evidence. Id.

Durham also argues the instant matter is distinguishable from Dodd and Griffin because there was no evidence of any actual uploads, i.e. distribution, of child pornography from Durham's computer. Barrios confirmed in his testimony that no evidence existed to show any Limewire users had ever actually obtained child pornography from Durham's computer; the evidence only showed at one point the files with names suggestive of child pornography were available for download. Further, unlike Estey, upon execution of the search warrant, the officers discovered no child pornography files in Durham's shared folder.

Although we agree with Durham that these facts distinguish this case, neither of these facts alone is determinative because our case law inquires whether the defendant's "use of the peer-to-peer file-sharing network made the child pornography files in his shared folder available to be searched and downloaded by other [file-sharing] users." Estey, 595 F.3d at 843 (emphasis added). See also Griffin, 482 F.3d at 1010-11 (noting the defendant's shared folder had been deleted from the computer upon execution of the search warrant). Parks's investigation uncovered files with names suggestive of child pornography available on Durham's computer through Limewire, and thus this requirement was satisfied.

While the lack of direct evidence or actual uploads does not make this case novel, other distinguishing facts present a closer question. First, unlike the typical situation exemplified by Estey, evidence presented at sentencing shows Durham was not responsible for the installation of Limewire on his computer. Estey, 595 F.3d at 844 ("Estey knowingly placed an internet peer-to-peer file-sharing program on his computer, knew how the program operated, and shared images with other network users.") (emphasis added). Barrios, the government's only witness, conceded he did not know who installed Limewire, and the defense subsequently presented testimony from Durham's brother, Casey, regarding the latter's installation and set-up of the program. Casey indicated he installed Limewire with Durham's daughter in order for her to download music. According to Casey, he configured Limewire according to the default settings, which automatically enabled file-sharing with other users.

Second, and more importantly, there is little evidence to show Durham knew how to operate the program. Casey testified he was "absolutely" more knowledgeable than Durham about general computer knowledge, and even Casey indicated he "[knew] a little bit, but . . . not everything, for sure." Casey further testified he told Durham he installed Limewire on the family computer, but Durham "wasn't real sure how to use it." Casey speculated Durham's daughter might have showed him how to use the program, but "[p]robably not in detail like I showed [his daughter]."

The foregoing facts illustrate a substantial distinction from our prior cases. The primary means of indirect evidence provided in our prior cases has been the defendant's sophistication with the file-sharing program. Such sophistication provides an inference that the defendant knew "by using a file-sharing network, he could download files from others who could also access his files." Bastian, 603 F.3d at 466. Accordingly, this court has upheld the application of distribution enhancements based on a defendant's file-sharing sophistication on numerous occasions. See Estey, 595 F.3d at 844 ("[L]ike the defendants in both Griffin and Sewell, Estey . . . knew how the [file-sharing] program operated"); Ultsch, 578 F.3d at 830 ("The defendant was a relatively sophisticated user of [Limewire]"); Stults, 575 F.3d at 849 ("The district court reasonably deemed Stults, who is technically sophisticated in computer use, with knowing that he was distributing child pornography through his use of LimeWire.").

Here, the district court's analysis evoked the familiar sophistication basis for its application of the distribution enhancement, as it concluded Durham was "very knowledgeable" about Limewire's capabilities. We are troubled by this conclusion, however, because it appears to be contradictory to the evidence in the record.*fn2 The only testimony directed at Durham's knowledge of file-sharing programs was provided by his brother Casey, who explicitly stated Durham "wasn't real sure how to use [the file-sharing program]."*fn3 While there is direct evidence of Durham's knowledge of downloading files via Limewire, there is no such evidence of his knowledge of uploading, i.e. distributing files, over the program, which is a critical distinction in this case.

Instead, the district court appeared to justify its conclusion on two premises. First, the court apparently accepted the government's argument that a shortcut to Durham's shared folder on his Windows desktop demonstrated his knowledge of file-sharing programs. The argument was based on testimony elicited from Barrios, who stated a shortcut on Durham's desktop was created after the installation of ...


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