Defendant’s Sentence Cannot be Enhanced Under the Distribution Guideline for Making Files Available to Download by Others Via Sharing Software Unless There is Proof the Defendant Knew Such Files Were Available for Download by Others

United States v. Robinson, 714 F.3d 466 (7th Cir. 2013). In possession of child pornography offense, the Court of Appeals held that a defendant’s sentence cannot be enhanced under the distribution guideline for making files available to download by others via sharing software unless there is proof the defendant knew such files were available for download by others. The Guideline, §2G2.2, provides for a 15-level enhancement for distribution or “posting material . . . on a website for public viewing.” The guideline does not actually have a knowledge requirement. Nevertheless, joining a circuit split, the court held that a sentencing judge must find that the defendant either knew, or was reckless in failing to discover, that the files he was downloading could be viewed online by other people. In the present case, the 61-year old defendant was very limited in his knowledge of computers. Moreover, the court looked to the specific sharing software, and noted that the default setting was to share files that someone downloaded, although the using may not necessarily be aware of that fact. Given the uncertainty, the court remanded to the district court for a finding on the defendant’s knowledge. NOTE: This is an important victory on the use of file sharing programs. The government must now present some evidence that a defendant knew his files were available for download to others before receiving the distribution enhancement. Given how sharing software works, and that the default setting is usually to share, some defendants genuinely do not know their files are viewable by others.