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.