[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
NOV 23, 2010
No. 10-10618 JOHN LEY
Non-Argument Calendar CLERK
________________________
D.C. Docket No. 1:09-cr-00002-SPM-AK-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MICAH C. PEACOCK,
Defendant-Appellant.
__________________________
Appeal from the United States District Court for the
Northern District of Florida
_________________________
(November 23, 2010)
Before BLACK, PRYOR and ANDERSON, Circuit Judges.
PER CURIAM:
Micah C. Peacock appeals his conviction for possession of child
pornography, 18 U.S.C. §§ 2252A(a)(5)(B), (b)(2), and his sentence of
imprisonment for 150 months for that crime and for receiving or distributing child
pornography, id. §§ 2252A(a)(2)(A), (b)(1). Peacock argues that the district court
erred by denying his motion to dismiss his conviction for possessing child
pornography and in calculating his sentence based on a finding that Peacock
distributed the pornographic material. We affirm.
The evidence at trial established that Peacock downloaded to and distributed
from his computer files containing images and videos of child pornography by
using LimeWire, which is a software program that allows its users to share files.
When a user installs LimeWire, his user agreement discloses that all files
downloaded to that computer will be shared automatically. After installation,
LimeWire includes in its directory and makes accessible to its users all files on
computers connected to the network, unless a user changes the default setting or
restricts access to a specific file.
April Joyner, a detective in the Alachua County Sheriff’s Office, discovered
Peacock’s files while searching Limewire for users who were sharing files
containing child pornography. Detective Joyner observed that Peacock had
available ten files of child pornography, and she downloaded three of those files.
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The detective later obtained a warrant to search Peacock’s apartment. During the
search, an officer discovered on Peacock’s computer several videos of child
pornography and seized the hard drive.
Detective Charles Snipes examined Peacock’s hard drive and discovered the
three files that had been downloaded by Detective Joyner, as well as the seven
other files available from Peacock on LimeWire. A further examination revealed
that Peacock had downloaded 65 images and 28 videos containing child
pornography between July and December 2008 that were available to any user of
LimeWire. Date stamps on the files established that Peacock downloaded to his
computer 36 images and 10 videos of child pornography between July and
October 22, 2008, and Peacock downloaded an additional 29 images and 18
videos of child pornography between October 23 and December 4, 2008. Through
LimeWire, Peacock made available “100 percent of his bandwidth to user
uploads,” but he restricted access to all but “a handful” of his MP3 music files.
At trial, the government introduced testimony of Detectives Joyner and
Snipes about LimeWire and their investigation and testimony of Peacock’s two
roommates about his penchant for pornography. Peacock testified that he had
closed any images he received of young girls while searching for adult
pornography, and he intimated that his roommates had downloaded the child
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pornography onto his computer while he had been at work. A jury found Peacock
guilty of receiving or distributing child pornography between October 23 and
December 4, 2008, and of possessing child pornography on December 4, 2008.
Peacock moved to dismiss his conviction for possession. Peacock argued
that his convictions for distribution and possession violated the Double Jeopardy
Clause. The district court denied Peacock’s motion based on our decision in
United States v. Bobb, 577 F.3d 1366, 1375 (11th Cir. 2009), in which we held
that the defendant could be sentenced to multiple punishments for receiving and
possessing different images of child pornography on different dates. The district
court found that “[s]ufficient evidence was presented for the Jury to find that
[Peacock] had committed two separate offenses on two distinct dates.”
The presentence investigation report listed a base offense level of 22, U.S.
Sentencing Guidelines Manual § 2G2.2(b)(3)(F) (2008), and increased that level
by 17 points. The report recommended a two-level enhancement because
Peacock’s offense involved the distribution of child pornography, id. §
2G2.2(b)(3)(F). The report stated that Peacock faced maximum statutory
sentences of 240 months for distributing child pornography and 120 months for
possessing the illegal material.
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Peacock objected to the presentence report on two related grounds. First,
Peacock objected to the two-level enhancement of his sentence for distributing
child pornography. Id. § 2G2.2(b)(3)(F). Peacock argued that he did not
distribute child pornography because the illegal materials were shared
automatically and he “[might] not have even known of it.” Second, Peacock
objected to the failure to reduce his offense level by two levels. Peacock argued
that his “conduct was limited to the receipt or solicitation of material involving the
sexual exploitation of a minor” and he “did not intend to traffic in, or distribute,
such material,” id. § 2G2.2. The district court overruled Peacock’s objections.
Peacock argues that his conviction for possession of child pornography was
based on the same misconduct as his convictions for distribution of child
pornography, but we disagree. “[W]here the same act or transaction constitutes a
violation of two distinct statutory provisions, the test to be applied to determine
whether there are two offenses or only one, is whether each provision requires
proof of a fact which the other does not.” Blockburger v. United States, 284 U.S.
299, 304, 52 S. Ct. 180, 182 (1932). Peacock was convicted of possessing and
receiving or distributing different images and videos of child pornography on
different dates. See Bobb, 577 F.3d at 1375. The district court did not err by
denying Peacock’s motion to dismiss.
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Peacock also argues that the district court erred in its application of section
2G2.2 based on its finding that Peacock distributed child pornography, but again
we disagree. If a defendant distributes child pornography, he is subject to a two-
level enhancement, U.S.S.G. § 2G2.2(b)(3)(F), and, unless the defendant proves
he did not intend to distribute the material, he is ineligible for a two-level
reduction of his base offense level, id. § 2G2.2(b)(1). A defendant is guilty of
distribution whether he possesses for publication or actually publishes child
pornography:
“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 . . . .
Id. § 2G2.2 cmt. n.1.
The district court was entitled to find that Peacock distributed child
pornography and that he failed to prove he lacked the intent to distribute that
material. The record establishes that Peacock downloaded to his computer images
and videos of child pornography that he made fully accessible for other users of
LimeWire and some of those materials were transferred on at least one occasion.
Peacock argues that he did not “take[] any positive step to distribute any images,”
but Peacock understood that his files would be shared and he restricted access to
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some of his files, but not those files containing child pornography. The district
court did not err in applying section 2G2.2.
We AFFIRM Peacock’s convictions and sentences.
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