No Scienter Requirement for § 2G2.2(b)(3)(F) Enhancement for Distribution of Child Pornography (Circuit Split)

United States v. Baker, No. 12-10834 (5th Cir. Feb. 12, 2014) (Reavley, Davis, Higginson)

The panel affirmed the district court’s application of the U.S.S.G. § 2G2.2(b)(3)(F) enhancement for Baker’s use of Frostwire that enabled other users to access the child pornography he downloaded, finding this enhancement has no scienter requirement.  In so doing, the panel joins the Tenth and Eleventh Circuits but disagrees with the Second, Fourth, and Seventh Circuits.  The Sixth and Eighth Circuits have held that the use of file-sharing software creates a strong presumption that the users understand that others can access their files, thereby supporting a § 2G2.2(b)(3)(F) enhancement, and the Eighth Circuit allows the defendant to rebut this presumption.

Why did the Fifth Circuit decide § 2G2.2(b)(3)(F) has no scienter requirement?  The panel looks to the language of the enhancement, which plainly does not contain a scienter requirement.  In contrast, the Sentencing Commission defined “distribution to a minor” as the “knowing distribution to an individual who is a minor at the time of offense,” indicating that the omission of a scienter for the definition of “distribution” was not an oversight.  The panel concludes that § 2G2.2(b)(3)(F) is unambiguous and that its application without a scienter requirement does not produce an absurd result, since Baker’s use of Frostwire “contributed to the proliferation of illicit material and increased harm to the children exploited by its creation and distribution.” 

The panel further explains that it typically does not apply the general presumption against strict-liability crimes to sentencing enhancements and that the rule of lenity only applies to ambiguous guidelines provisions.

Loss in Real Estate Fraud Scheme Not Offset by Value of Homes; Mass-Marketing Enhancement Applies if Advertisement Reaches Large Number of Persons

United States v. Morrison, No. 11-50614 (5th Cir. Apr. 4, 2013) (Stewart, Garza, Elrod)

Jason Heath Morrison, indicted for his part in a real estate scheme designed to defraud multiple parties, appealed his sentence, challenging the district court’s calculation of the loss amount and its application of the sentencing enhancement for “mass-marketing.” Morrison, who fled to Washington and attempted to change his identity, also challenged the sentencing enhancements for sophisticated means and obstruction of justice, as well as the PSR’s failure to reduce his sentencing level for acceptance of responsibility. The panel affirmed.

The PSR recorded an intended loss of $769,365 after totaling all the mortgages involved in the scheme and subtracting what was paid to the lenders. Morrison objected, citing Application Note 3(E) of U.S.S.G. § 2B1.1—which provides that in calculating the victims’ pecuniary losses for fraud offenses, that amount shall be reduced by the value of the collateral—and arguing that the loss should be reduced by the value of the underlying property to $111,912.96. In response to Morrison’s invocation of Application Note 3(E) of U.S.S.G. § 2B1.1, the district court mistakenly deemed the guideline inapplicable to the case, claiming that “the credits against loss only apply where the property is returned prior to detection by law enforcement.” The panel acknowledged that the district court’s interpretation of Application Note 3(E) of U.S.S.G. § 2B1.1 may have been error but held that any error was harmless. The evidence suggesting that the defendants did not intend to repay the mortgage loans was sufficient to support the district court’s decision to ignore collateral value when calculating the financial damages and its discretion to employ an intended loss calculation in lieu of an actual loss calculation.     

Morrison also contested the methods used by the district court to increase his offense level by two for the “mass-marketing” enhancement. Morrison argued that the intended number of victims was nine, one purchaser for each property, and nothing more. The panel disagreed with Morrison’s reasoning, citing United States v. Magnuson, 307 F.3d 333, 335 (5th Cir. 2002), which ruled that the mass-marketing enhancement “merely requires advertising that reaches a large number of persons.” The panel found no error in the district court’s application of the mass-marketing enhancement.

Only One Felony under 18 U.S.C. § 641 for Thefts that Total $1000+ in the Aggregate but <$1000 Each

United States v. Lagrone, No. 13-10049 (5th Cir. Feb. 18, 2014 (Reavley, Prado, Owen)

Lagrone pleaded guilty to two counts of theft in violation of 18 U.S.C. § 641 for stealing $880 of stamps in each of two post offices.  Under § 641, when the aggregate value of the property in all counts for which the defendant is convicted in a single case does not exceed $1000, she faces misdemeanor penalties.  By pleading to two counts of theft of $880 each, the Government argued that Lagrone was guilty of two felonies and should be sentenced accordingly.  Lagrone argued that she could only be convicted of one felony since the neither count alone would be a felony. 

The panel addresses this question of statutory interpretation, finding that § 641 “permits aggregation under the [instant] facts . . . in order to charge a single felony, [but] it does not permit charging both offenses for which Lagrone was convicted as felonies.”  It reasons that the Government’s interpretation “permits retroactively changing the penalty for what would otherwise be misdemeanor offenses to penalties for felonies if they are charged in the same case as subsequent thefts that exceed $1000 in the aggregate.”  The case was vacated and remanded so that Lagrone could be resentenced for a single felony.

Note: The panel states that this conclusion comports with United States v. Reagan, 596 F.3d 251 (5th Cir. 2010), in which the Fifth Circuit held that the Government can prosecute under § 641 for each individual transaction.  Reagan was convicted of five counts of violating § 641 (for improperly receiving federal low-income housing rent subsidy program payments over a period of five years), but each count had a value exceeding $1000.  So, the aggregation clause interpreted in Lagrone was not at issue in Reagan.

Florida Delivery of Cocaine Categorically Not an Aggravated Felony Because Mens Rea Is Affirmative Defense Instead of Element

Sarmientos v. Holder, No. 13-60086 (5th Cir. Feb. 12, 2014) (Reavley, Prado, Owen)

Sarmientos is the Fifth Circuit’s Valentine’s Day gift to immigration and criminal defense attorneys.  It’s also a nice reminder to check all of the elements of a conviction when using the categorical approach and that the categorical analysis applies to the “least of the acts criminalized.” 

Florida delivery of cocaine, Florida Statute § 893.13(1)(a)(1), did not require that the prosecution prove beyond a reasonable doubt that the defendant knowingly delivered cocaine.  Rather, the defendant could raise an affirmative defense that he lacked knowledge of the illicit nature of the controlled substance. 

Sarmientos argued before the immigration judge that, since the Florida statute lacked the federal mens rea requirement, his conviction was not categorically an aggravated felony.  The IJ rejected that argument and found that Sarmientos was ineligible for cancellation of removal.  Sarmientos appealed to the Board of Immigration Appeals, and the BIA affirmed the IJ’s decision.  On appeal to the Fifth Circuit, the panel reverses, citing the recent Supreme Court decisions of Moncrieffe and Descamps.

So, when undertaking the categorical analysis, keep an eye out for elements that a state statute turns into an affirmative defense.  The panel clearly rejects the Government’s argument that an affirmative defense is sufficient for a federal/generic element that must be found beyond a reasonable doubt.

Appeal Waiver of “Sentence” Valid and Applied to Conflict between Oral and Written Pronouncement of Supervised Release Convictions

United States v. Higgins, No. 12-30818 (5th Cir. Jan. 10, 2014) (Stewart, Jolly, Smith)

Higgins pleaded guilty to receipt of child pornography and appealed his sentence of fifteen years of imprisonment and five years of supervised release.  The panel found that he knowingly and voluntarily waived any appeal of his “sentence” (unless above the statutory maximum) and that the waiver applied to conditions of supervised release.  The appeal was dismissed.

At his rearraignment, the district court questioned Higgins about his reading and understanding of the plea agreement, and Higgins responded that there were not any provisions that he did not understand.  The plea agreement acknowledged that Higgins’ prior convictions constituted convictions of “abusive sexual conduct involving a minor or ward,” thereby subjecting him to the minimum sentence of fifteen years under 18 U.S.C. § 2252.  At sentencing, the court sentenced him to supervised release and, in the written (but not oral) pronouncement of conditions, required him to contribute to the cost of drug treatment and to warn other residents with whom he lived that they may be subject to search pursuant to his supervised release conditions.

The panel found that Higgins knowingly and voluntarily waived his appeal and that the waiver applied to his fifteen year sentence since Higgins only reserved the right to appeal any punishment imposed in excess of the statutory maximum, which was forty years with the qualifying prior conviction and twenty years without it.  Higgins also argued that the waiver did not apply to his challenge to his conditions of supervised release since the written pronouncement conflicted with and broadened the oral pronouncement.  The panel concluded that his challenge to the written judgment’s conditions of supervised release is an appeal of his “sentence.”  Since those conditions did not violate the statutory limitations of supervised release conditions, Higgins’ argument falls within the appeal waiver and was waived.

Maryland Attempted Sexual Contact with Person Under 14 Is § 2L1.2 COV

United States v. Chacon, No. 12-41301 (5th Cir. Feb. 6, 2014) (Smith, DeMoss, Higginson)

This is the latest application of the plain-meaning approach announced in United States v. Rodriguez, 711 F.3d 541 (5th Cir. 2013) (en banc).  Chacon pled guilty to illegal reentry but challenged the 16-level enhancement for his prior conviction for attempted sexual contact with a person under 14 years in violation of Maryland’s Criminal Law § 3-307(a)(3).  The panel rejected Chacon’s argument in a 3-page opinion, stating simply:

After reviewing § 3-307(a)(3) we are satisfied that a violation of that section constitutes sexual abuse of a minor under the plain-meaning approach.  See United States v. Rodriguez, 711 F.3d 541, 552 (5th Cir.) (en banc), cert. denied, 134 S. Ct. 512 (2013).

Chacon did not argue that “attempt” under Maryland law is different than “attempt” under the Guidelines, so the panel simply cited to § 2L1.2 cmt. n.5 which states that a “crime of violence” includes an attempt to commit a crime of violence.

The panel did not decide whether § 3-307(a)(3) also constituted a crime of violence as a “forcible sex offense.”  Nor did the panel reach the other issue Chacon raised, which was—if § 3-307(a)(3) is not categorically a crime of violence—whether the court could consider an Application for Statement of Charges from Maryland to narrow the conviction.  Since the panel found attempted sexual contact with a person under the age of 14 was categorically a crime of violence, it did not have to look to any documents to narrow the conviction.

Peer-to-Peer File Sharing is CP Distribution; Use-of-Computer Enhancement Not Double-Counting

United States v. Richardson, No. 11-20773 (April 1, 2013) (Davis, Graves, Higginson)

Richardson challenged his conviction for distribution of child pornography, arguing that he did not “distribute” child porn by storing images in a shared folder accessible on a peer-to-peer computer network. Richardson also opposed the district court’s decision to apply a two-level enhancement for use of a computer under U.S.S.G. § 2G2.2(b)(6). The panel affirmed.

Richardson’s first claim was that his actions did not amount to “distribution” under 18 U.S.C. § 2252A(a)(2)(B). Richardson compared his conduct to leaving magazines containing child porn at a public location, and that the possibility of someone taking one could not truly be called “distribution” because a transfer did not officially take place. The panel noted however that the Fifth Circuit repeatedly affirmed the distribution enhancement under U.S.S.G. § 2G2.2(b)(3)(B) for the use of a peer-to-peer program. Other circuits have held that “distribution” may occur when an individual consciously makes files available for others to take and those files are in fact taken. See, e.g., United States v. Chiaradio 684 F.3d 265 (1st Cir. 2012); United States v. Shaffer, 472 F.3d 1219 (10th Cir. 2007). The panel concluded, as a matter of first impression, that Richardson was in fact responsible for distribution due to his use of a peer-to-peer network.

Richardson also argued that he was a victim of unwarranted double-counting by the court’s application of a two-level enhancement under § 2G2.2(b)(6) for use of a computer to commit a crime when use of a computer was already included as an element of the offense. The panel held that double-counting is only prohibited if the relevant Guideline expressly forbids it.  Since § 2G2.2(b)(6) does not expressly forbid it, the district court did not err in its ruling. Furthermore, the statute could be violated in ways other than by using a computer.

Thanks to FPD Intern Matthew Gonzalez for this post.