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.