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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 14-12438
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D.C. Docket No. 4:14-cr-00001-MW-CAS-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DONALD EUGENE CREEL,
Defendant-Appellant.
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Appeals from the United States District Court
for the Northern District of Florida
________________________
(April 21, 2015)
Before TJOFLAT, WILLIAM PRYOR, and BARKSDALE, ∗ Circuit Judges.
WILLIAM PRYOR, Circuit Judge:
This appeal requires us to decide whether the definition of “[d]istribution” of
child pornography under the Sentencing Guidelines, U.S.S.G. § 2G2.2(b)(3)(F)
∗
Honorable Rhesa H. Barksdale, United States Circuit Judge for the Fifth Circuit, sitting by
designation.
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(Nov. 2013), includes an element of mens rea. Donald Eugene Creel pleaded guilty
to receipt of child pornography, 18 U.S.C. §§ 2252A(a)(2)(A), (b)(1), and received
an enhanced sentence when the district court ruled that he “[d]istribut[ed]” child
pornography, U.S.S.G. § 2G2.2(b)(3)(F), through a file sharing program on his
computer. Because distribution of child pornography, id., does not require an
offender to know that he made child pornography accessible to others, we affirm
Creel’s sentence.
I. BACKGROUND
In Florida, Creel downloaded child pornography to his computer through an
internet-based file sharing program. File sharing programs allow users “to search
for files located in the shared folder that is created by the software on the
computers of other users, and when found, the requesting user can download the
file.” United States v. Vadnais, 667 F.3d 1206, 1208 (11th Cir. 2012). “The copied
file is placed in a designated sharing folder on the requesting user’s computer,
where it is available for other users to download in turn . . . .” Metro-Goldwyn-
Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913, 921, 125 S. Ct. 2764, 2771
(2005).
After police in Pennsylvania downloaded child pornography from Creel’s
computer through the file sharing program, a grand jury indicted Creel for one
count of knowing receipt or distribution of child pornography, 18 U.S.C.
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§§ 2252A(a)(2)(A), (b)(1), and one count of possession of child pornography, id.
§§ 2252A(a)(5)(B), (b)(2). He pleaded guilty to the first count, and the government
agreed to dismiss the second count.
The presentence investigation report calculated Creel’s guideline range as
151 to 188 months of imprisonment, U.S.S.G. ch. 5, pt. A, Sentencing Table,
including a two-level enhancement for “[d]istribution” of child pornography, id.
§ 2G2.2(b)(3)(F). Creel objected to the sentencing enhancement on the ground that
he did not know that other users of the file sharing program could access the child
pornography that he had downloaded. The probation officer responded that,
according to a police interview with Creel, Creel’s son installed the program on
Creel’s computer and taught Creel how to use it, but Creel later “figured out some
[o]f it” on his own. Creel told police that he searched for terms such as “lolita” and
“teen,” and that the results of the search were “whatever they got that matches the
search terms.” The probation officer “believe[d] this statement [was] telling as to
how much [Creel] knew about the concept of file-sharing, in that [Creel]
understood that files [were] being downloaded from other users.” The probation
officer also “noted that[,] in [the program], the upload speeds are clearly indicated
in a column adjacently located to the column that indicates download speeds.”
At Creel’s sentencing hearing, a special agent for Immigration and Customs
Enforcement testified about a recorded interview between Creel and police. The
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special agent testified that Creel admitted that he used the program to download
child pornography for a period of one-and-one-half months and that he had to
reformat the hard drive on his computer and reinstall the Windows operating
system “several times” because one of the files he downloaded contained a
computer virus. The special agent testified that “[i]t was clear from . . . listening to
the audio clip that . . . Creel understood that he was using a file-sharing program.”
Based on the presentence investigation report and the special agent’s
testimony, the district court ruled that Creel distributed child pornography. Id. The
district court found “that file sharing was used, that he knew it was being used, was
accessing it.” The district court also found “that the presentence investigation
report is accurate” and that, “even if knowledge was critical or dispositive, . . .
[Creel] indeed meets the qualifications for the two-level enhancement for
distribution under 2G2.[2](b)(3)[(F)].” The district court varied downward from
Creel’s guideline range and sentenced him to 84 months of imprisonment.
II. STANDARDS OF REVIEW
“The district court’s factual findings are reviewed for clear error, and its
application of those facts to justify a sentencing enhancement is reviewed de
novo.” United States v. Spriggs, 666 F.3d 1284, 1286 (11th Cir. 2012). “For a
factual finding to be clearly erroneous, this [C]ourt, after reviewing all of the
evidence, must be left with a definite and firm conviction that a mistake has been
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committed.” United States v. Rodriguez-Lopez, 363 F.3d 1134, 1137 (11th Cir.
2004) (internal quotation marks and citation omitted). The factual findings “cannot
be based on speculation,” United States v. Newman, 614 F.3d 1232, 1238 (11th
Cir. 2010), but the district court may draw “reasonabl[e] . . . infer[ences]” from the
facts in the record, United States v. Scott, 441 F.3d 1322, 1327 (11th Cir. 2006).
III. DISCUSSION
Creel argues that the district court erred when it enhanced his sentence for
“[d]istribution” of child pornography, U.S.S.G. § 2G2.2(b)(3)(F). Creel argues that
the enhancement for distribution requires him to know that other users of the file
sharing program could access the child pornography on his computer. He argues
that there was no evidence that he had that knowledge. Creel’s arguments fail.
The commentary to section 2G2.2 of the Guidelines defines distribution as
“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.” Id. § 2G2.2, cmt. n.1. The commentary also states
that, “[a]ccordingly, 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.” Id.
No element of mens rea is expressed or implied by this definition. “We look
to the plain language of the definition[] to determine [its] elements, and we
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presume that . . . the Sentencing Commission said what [it] meant and meant what
[it] said.” United States v. Smith, 775 F.3d 1262, 1267 (11th Cir. 2014) (internal
quotation marks and citation omitted). The definition requires only that the “act . . .
relate[s] to the transfer” of child pornography. U.S.S.G. § 2G2.2, cmt. n.1.
If the Sentencing Commission “meant” to require knowledge, it would have
“said” as much. Smith, 775 F.3d at 1267. Section 2G2.2(B)(3) provides six
sentencing enhancements for different types of distribution of child pornography,
including a five-level enhancement for “[d]istribution to a minor.” U.S.S.G.
§ 2G2.2(b)(3)(C). In the same comment to the Guidelines where distribution is
defined, “[d]istribution to a minor” is defined as “knowing distribution to an
individual who is a minor at the time of the offense.” Id. § 2G2.2, cmt. n.1
(emphasis added). That both terms are defined in the same comment, id., but only
one definition includes an express element of mens rea, implies that the other
definition has no element of mens rea. See Fedorenko v. United States, 449 U.S.
490, 512–13, 101 S. Ct. 737, 750 (1981) (explaining that the “deliberate omission
of [a] word” that appears in an adjacent textual provision “compels the conclusion”
that the omitted word should not be “impl[ied]”). Although we have stated in dicta
that distribution occurs “[w]hen the user [of a file sharing program] knowingly
makes the files [on his computer] accessible to others,” Spriggs, 666 F.3d at 1287,
our dicta cannot be squared with the plain language of the commentary.
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Our reading of the commentary comports with two of our sister circuits that
have addressed this issue and held that the commentary “unambiguously does not
contain a scienter requirement.” United States v. Baker, 742 F.3d 618, 622 (5th Cir.
2014); see also United States v. Ray, 704 F.3d 1307, 1313 (10th Cir. 2013). These
sister circuits have held that “the phrase [‘any act . . . related to the transfer’ of
child pornography, U.S.S.G. § 2G2.2, cmt. n.1,] should be construed broadly,”
Baker, 742 F.3d at 621, and that “the drafters of the commentary to [section] 2G2.2
knew how to include a scienter requirement when they wanted to,” Ray, 704 F.3d
at 1313. We acknowledge that four of our sister circuits have held that section
2G2.2(b)(3)(F) requires an individual to know that he “[d]istribut[ed]” child
pornography, United States v. Baldwin, 743 F.3d 357, 361 (2d Cir. 2014) (holding
that “a defendant [must know] that his use of [file sharing] software would make
child-pornography files accessible to other users”); United States v. Layton, 564
F.3d 330, 335 (4th Cir. 2009) (same); United States v. Robinson, 714 F.3d 466, 468
(7th Cir. 2013) (same); United States v. Dodd, 598 F.3d 449, 452 (8th Cir. 2010)
(holding that use of a file sharing program creates a presumption that an individual
knew he distributed child pornography), but those decisions are inconsistent with
the “plain language” of the commentary, Smith, 775 F.3d at 1267.
Finally, we hold, in the alternative, that even if knowledge is an element of
“[d]istribution,” U.S.S.G. § 2G2.2(b)(3)(F), the district court did not clearly err
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when it found that Creel knew that other users of the file sharing program could
access the child pornography on his computer. The district court stated that the
special agent’s testimony was “credible” and the presentence investigation report
was “accurate,” and “[w]e defer to the credibility choices made by the district
court,” Harris v. Schonbrun, 773 F.3d 1180, 1183 (11th Cir. 2014) (internal
quotation marks and citation omitted). Based on those sources, the district court
was entitled to find that Creel knew that other users could access the child
pornography on his computer.
IV. CONCLUSION
We AFFIRM Creel’s sentence.
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