Seventh Circuit Vacates CP Sentence Based on Enhancement for Distribution – United States v. Robinson

April 17, 2013 by David S. Seltzer

Last week, I wrote here about a child pornography distribution defendant who unsuccessfully argued that keeping the pornography in the “shared” folder of his peer-to-peer file-sharing program couldn’t support a charge of distribution. So I was interested to see a newer case in which the Seventh U.S. Circuit Court of Appeals did accept an argument that sharing material through file-sharing software’s default behavior did not support distribution. In United States v. Robinson, Larry Robinson of southern Illinois was convicted of possession, but had his Sentencing Guidelines level enhanced for distribution, which he contested. The district court sentenced him to a within-guidelines sentence for distribution, but the Seventh Circuit, in an opinion that includes several screenshots, vacated the sentence and sent it back for resentencing according to what Robinson knew or probably knew about distribution.

As with many Seventh Circuit opinions, this one is short on factual history. Robinson was convicted, after a jury trial, of possessing child pornography. His Guidelines sentence was raised 15 levels from the base offense level, and two of those levels were for an enhancement for distributing the pornography. (He had not been charged with the separate offense of distributing child pornography.) This would have resulted in a sentence of 135 to 168 months, but that placed Robinson’s sentence above the statutory maximum of 120 months; the judge ultimately sentenced him to the lowest Guidelines sentence without the two-level enhancement, which was 108 months, followed by 10 years of supervised release. Robinson argued at trial and on appeal that the two-level increase should not apply to his actions, saying he didn’t know other people could view the materials he downloaded.

The Seventh Circuit found that this argument deserved further investigation. The guidelines say “distribution” can include “posting material… on a website for public viewing.” In this case, Robinson downloaded the material through the file-sharing programs FrostWire and LimeWire, which by default put downloaded material in a “shared” folder that other users can access. Prosecutors argued that the guideline doesn’t require Robinson to know that the material can be accessed by others, but the Seventh Circuit disagreed. In so doing, it agreed with a 2010 Eighth Circuit decision, United States v. Durham, which found that the defendant must be found to have known or recklessly failed to discover that the material could be seen by others. This also expressly disagreed with the Tenth Circuit’s decision in United States v. Ray. The Seventh further noted that trial evidence suggested Robinson, 61, is “barely computer literate,” and that the software doesn’t make it explicit what is shared. Because the sentencing range could have influenced the judge’s sentencing decision, the court said, Robinson is entitled to a new sentencing hearing, taking into account evidence about what he knew about sharing.

Judging by this opinion, the issue of distribution via file-sharing is the subject of a small split between the circuits. I believe the Seventh’s standard is the right one: the defendant must know or probably know that the material is being shared in order to be convicted of distribution or have a sentence enhanced for distribution. Because I frequently defend people accused of serious cyber crimes, I’m eager to see whether it’s resolved by a Supreme Court case or by action from the Sentencing Commission. The Commission has recently been examining issues related to child pornography crimes and urged action by Congress. This could create a quicker resolution to the issue—if Congress acts. Unfortunately, the fear of political consequences for being seen as “soft” on child pornography has kept Congress from enacting other common-sense reforms, and this could go the same way.

If you’re accused of a child pornography crime or other serious cyber crime, you need experienced legal help right away. For a free, confidential case evaluation, don’t wait to call Seltzer Law, P.A. You can reach us 24 hours a day and seven days a week at 1-888-THE-DEFENSE (1-888-843-3333) or send us a message online.

Similar blog posts:

Appeals Court Upholds Distribution of Child Porn Conviction for Sharing on LimeWire – U.S. v. Richardson

Tenth Circuit Rules Distribution Charge Applies for Use of File-Sharing Software – U.S. v. Ray

Momentum Grows for U.S. Sentencing Commission to Revise Child Porn Guidelines