13‐163‐cr (L)
United States v. Baldwin
In the
United States Court of Appeals
For the Second Circuit
________
AUGUST TERM 2013
Nos. 13‐163‐cr (Lead) 13‐335‐cr (Con)
UNITED STATES OF AMERICA,
Appellee,
v.
DENNIS WAYNE BALDWIN,
Defendant‐Appellant.
________
Appeal from the United States District Court
for the District of Vermont.
Nos. 2:12‐cr‐32‐1, 2:12‐cr‐33‐1 ― William K. Sessions, III, Judge.
________
ARGUED: DECEMBER 11, 2013
DECIDED: FEBRUARY 21, 2014
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Before: CABRANES, SACK, and LYNCH, Circuit Judges.
________
Defendant Dennis Wayne Baldwin appeals the judgment of
the District Court sentencing him principally to 87 months’
2 Nos. 13‐163‐cr, 13‐335‐cr
imprisonment after he pleaded guilty, pursuant to a plea agreement,
to possession of child pornography, in violation of 18 U.S.C.
§ 2252(a)(4)(B), and possession of a firearm by a convicted felon, in
violation of 18 U.S.C. § 922(g)(1). The only issue on appeal is
whether a finding of knowledge is required to impose the two‐level
enhancement for distribution of child pornography under
§ 2G2.2(b)(3)(F) of the United States Sentencing Commission
Guidelines. We conclude that it is required.
Accordingly, we VACATE the sentence imposed by the
District Court and REMAND the cause for resentencing consistent
with this opinion.
________
STEVEN L. BARTH, Assistant Federal Public
Defender, for Michael L. Desautels, Federal Public
Defender, Burlington, VT, for Appellant Dennis
Wayne Baldwin.
NANCY J. CRESWELL (Gregory L. Waples, on the
brief) Assistant United States Attorneys, for
Tristram J. Coffin, United States Attorney for the
District of Vermont, Burlington, VT, for Appellee
United States of America.
________
PER CURIAM:
Defendant Dennis Wayne Baldwin appeals the judgment of
the District Court sentencing him principally to 87 months’
imprisonment after he pleaded guilty, pursuant to a plea agreement,
to possession of child pornography, in violation of 18 U.S.C.
3 Nos. 13‐163‐cr, 13‐335‐cr
§ 2252(a)(4)(B), and possession of a firearm by a convicted felon, in
violation of 18 U.S.C. § 922(g)(1). The only issue on appeal is
whether a finding of knowledge is required to impose the two‐level
enhancement for distribution of child pornography under
§ 2G2.2(b)(3)(F) of the United States Sentencing Commission
Guidelines (“Guidelines”). We conclude that it is required.
BACKGROUND
On February 28, 2012, Baldwin was arrested by agents of the
Department of Homeland Security (“DHS”) on suspicion of
possession of child pornography and unlawful possession of
firearms. At that time, he waived his Miranda rights and spoke
freely with the federal agents. As relevant here, he admitted to
possessing and searching for child pornography, and to using peer‐
to‐peer (“P2P”) file‐sharing software to do so. He also stated that
“as far as he knew, he did not share files, and that they are only for
his viewing.”
On August 22, 2012, Baldwin pleaded guilty before the
District Court to the charges of possessing child pornography and
being a felon in possession of a firearm.
In its Pre‐Sentence Report (“PSR”), the United States
Probation Office (“Probation Office”) recommended a two‐level
enhancement for distribution of child pornography pursuant to
United States Sentencing Guidelines (“U.S.S.G.”) § 2G2.2(b)(3)(F).1
1 U.S.S.G. § 2G2.2(b)(3) provides:
4 Nos. 13‐163‐cr, 13‐335‐cr
In the PSR, the Probation Office took the position that “just as the
defendant knew he could access and download shared files via [the
P2P programs], there is a preponderance of the evidence to establish
that he also knew his files were available for others to do the same.”
Id. Baldwin objected to the enhancement on the ground that he did
not have the requisite mens rea—namely, the knowledge that he was
sharing child pornography.
On January 7, 2013, the District Court held a sentencing
hearing. Baldwin again objected to the imposition of the
§ 2G2.2(b)(3)(F) enhancement without a finding of knowing
distribution. As to knowledge, Judge Sessions stated the following:
(3) (Apply the greatest) If the offense involved:
(A) Distribution for pecuniary gain, increase by the
number of levels from the table in § 2B1.1 (Theft, Property
Destruction, and Fraud) corresponding to the retail value of the
material, but by not less than 5 levels.
(B) Distribution for the receipt, or expectation of receipt, of
a thing of value, but not for pecuniary gain, increase by 5 levels.
(C) Distribution to a minor, increase by 5 levels.
(D) Distribution to a minor that was intended to persuade,
induce, entice, or coerce the minor to engage in any illegal
activity, other than illegal activity covered under subdivision (E),
increase by 6 levels.
(E) Distribution to a minor that was intended to persuade,
induce, entice, coerce, or facilitate the travel of, the minor to
engage in prohibited sexual conduct, increase by 7 levels.
(F) Distribution other than distribution described in
subdivisions (A) through (E), increase by 2 levels.
The District Court here applied the enhancement described in subsection F.
5 Nos. 13‐163‐cr, 13‐335‐cr
[Baldwin] has indicated that he did not know that those
particular pieces of software would permit others to
actually take images from his possession into their own
[possession]. And that may or may not be the case, or it
may be that at the time of the arrest—and he certainly
was candid with law enforcement in general—he didn’t
know that in fact those images could be shared from his
computer.
But it seems to me that this is a situation in which he
had a level of expertise, and he should very well have
known that when you have a peer‐to‐peer sharing
software system, that that means that you can get
images from others and they can get images from you.
It’s almost self‐evident at that particular point.
Joint App’x 143. The District Court thereafter applied the
enhancement for distribution, resulting in a Guidelines range of 87
to 108 months’ imprisonment, and imposed a sentence of 87 months
on both charges, to run concurrently.
DISCUSSION
Baldwin argues on appeal that the District Court erred in
applying the two‐level enhancement for distribution. “We review de
novo all questions of law relating to the [D]istrict [C]ourt’s
application of a federal sentence enhancement,” United States v.
Simard, 731 F.3d 156, 161 (2d Cir. 2013) (internal quotations omitted),
and we review the District Court’s findings of fact supporting its
legal conclusions for clear error, see United States v. Hertular, 562 F.3d
6 Nos. 13‐163‐cr, 13‐335‐cr
433, 449 (2d Cir. 2009). In the circumstances presented here, we
conclude that the District Court erred in imposing the enhancement.
Section 2G2.2(b)(3)(F) provides for a two‐level enhancement
where the child pornography offense involves “simple distribution”
(i.e., not distribution for pecuniary gain, to a minor, and so on, each
of which leads to a greater enhancement). The Sentencing
Commission commentary accompanying U.S.S.G. § 2G2.2 clarifies
that “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 cmt. n.1.
Recently, in a non‐precedential summary order, “[w]e
assume[d] without deciding that some degree of knowledge is
required to support a distribution enhancement under U.S.S.G.
§ 2G2.2.” United States v. Farney, 513 F. App’x 114, 116 (2d Cir. 2013).
In United States v. Reingold, we held that this enhancement applies
when a defendant “knowingly plac[es] child pornography files in a
shared folder on a peer‐to‐peer file‐sharing network . . . even if no
one actually obtains an image from the folder.” 731 F.3d 204, 229 (2d
Cir. 2013) (emphasis added) (quoting Farney, 513 F. App’x at 116).
7 Nos. 13‐163‐cr, 13‐335‐cr
We further clarified that “it applies without regard to whether the
defendant’s primary purpose in placing child pornography files in a
file‐sharing program was to receive or to distribute child
pornography.” Id. at 230.
A later non‐precedential summary order, relying on Reingold,
concluded that there was indeed a knowledge requirement for
§ 2G2.2(b)(3)(F) to apply. United States v. Reed, ‐‐‐ F. App’x ‐‐‐‐, 2013
WL 5976374, at *1 (2d Cir. Nov. 12, 2013).
We write today to clarify the meaning of the “knowledge”
requirement indicated in Reingold. We hold that, although the
defendant’s intent is irrelevant for an enhancement under
§ 2G2.2(b)(3)(F), a district court must find that a defendant knew that
his use of P2P software would make child‐pornography files
accessible to other users. See Reingold, 731 F.3d at 229–30 (collecting
cases from our sister circuits, each requiring knowing distribution).2
This requirement is consistent with our previous admonition that
§ 2G2.2 “is fundamentally different from most [Guideline
provisions] and that, unless applied with great care, [it] can lead to
2 We do not foreclose a finding of knowledge on the basis that a defendant was
willfully ignorant as to how a P2P file‐sharing program operated. Cf. United
States v. Svoboda, 347 F.3d 471, 477–78 (2d Cir. 2003) (“The conscious avoidance
doctrine provides that a defendant’s knowledge of a fact required to prove the
defendant’s guilt may be found when the jury is persuaded that the defendant
consciously avoided learning that fact while aware of a high probability of its
existence. In such circumstances, a conscious avoidance instruction to the jury
permits a finding of knowledge even where there is no evidence that the
defendant possessed actual knowledge.” (internal quotation marks and citations
omitted)).
8 Nos. 13‐163‐cr, 13‐335‐cr
unreasonable sentences that are inconsistent with what [the
sentencing factors in 18 U.S.C.] § 3553 require[].” United States v.
Dorvee, 616 F.3d 174, 184 (2d Cir. 2010).
The Government contends that the District Court here did
make the requisite finding of knowing distribution. We disagree.
The District Court here found that Baldwin should have known that
his files containing child pornography would be shared, but
expressly declined to find that he in fact knew. It noted that it is
“almost self‐evident” that distribution would take place through the
P2P software, but it did not expressly find whether Baldwin had
known that in fact those images could be shared from his computer.
Although the District Court noted that the record contains evidence
that Baldwin may have had some expertise with computers,
arguably supporting an inference that Baldwin knew he was
distributing files, the District Court made no such finding. Rather, it
found only that he “should very well have known.” Joint App’x
143. That statement does not constitute a finding of knowing
distribution.
Because the District Court did not make the independent
finding of knowledge necessary to apply the § 2G2.2(b)(3)(F)
distribution enhancement, we are required to vacate the sentence
and remand the cause for further proceedings. See United States v.
Scotti, 47 F.3d 1237, 1251–52 (2d Cir. 1995). We do not, of course,
preclude Judge Sessions from making a finding of knowledge on
remand, and do not intimate a view as to whether such a finding is
warranted on the record of this case.
9 Nos. 13‐163‐cr, 13‐335‐cr
Finally, the Government argues that even if the District Court
incorrectly applied the § 2G2.2(b)(3)(F) enhancement, the error was
harmless. “Where we identify procedural error in a sentence, but
the record indicates clearly that ‘the district court would have
imposed the same sentence’ in any event, the error may be deemed
harmless, avoiding the need to vacate the sentence and to remand
the case for resentencing.” United States v. Jass, 569 F.3d 47, 68 (2d
Cir. 2009) (quoting United States v. Cavera, 550 F.3d 180, 197 (2d Cir.
2008) (en banc)).
The Government bases its harmless‐error argument on the fact
that the District Court declined to impose the “use of a computer”
enhancement under U.S.S.G. § 2G2.2(b)(6) in order to avoid “double
counting” under the Guidelines. According to the Government, had
the District Court not applied the two‐level distribution
enhancement, it clearly would have imposed the two‐level
computer‐use enhancement instead, resulting in an identical
Guidelines range.
We disagree. The District Court expressly stated that it found
the computer‐use enhancement duplicative of “all of the other
enhancements,” not just § 2G2.2(b)(3)(F). Joint App’x 126. It then
went on to impose a sentence at the very bottom of the applicable
Guidelines range, which strongly suggests that, without the
distribution enhancement, Baldwin’s sentence might have been
lower. Under these circumstances, we cannot conclude that this
sentencing error was harmless.
10 Nos. 13‐163‐cr, 13‐335‐cr
CONCLUSION
To summarize, we hold that:
(1) Under Reingold, although a defendant’s intent is irrelevant for
the enhancement under § 2G2.2(b)(3)(F), a defendant must
know that his actions, such as the use of P2P software, will
make the child‐pornography files accessible to other users.
(2) The District Court’s finding that Baldwin should have known
that his files containing child pornography would be shared
falls short of the required finding of knowing distribution.
(3) The sentencing error was not harmless in light of the District
Court’s statement that the computer‐use enhancement was
duplicative of “all of the other enhancements,” and in light of
its imposition of a sentence at the very bottom of the
applicable Guidelines range.
For the reasons set out above, we VACATE the sentence and
REMAND the cause for resentencing consistent with this Opinion.