Appeal from the United States District Court for the Southern District of Illinois. No. 4:11 CR 40055-011-JPG--J. Phil Gilbert, Judge.
The opinion of the court was delivered by: Posner, Circuit Judge.
Before POSNER, KANNE, and WILLIAMS, Circuit Judges.
A jury convicted the defendant of possessing child pornography, and the judge sen- tenced him to 108 months in prison (to be followed by a 10-year term of supervised release) after increasing his base offense level by 15 levels. At issue are two of the 15 levels--a two-level enhancement that the guide- lines prescribe if the defendant, though not charged with the separate offense of distributing child pornogra- phy, had in fact distributed the pornography that he possessed. U.S.S.G. § 2G2.2(b)(3)(F). This adjustment, which the judge thought applicable to the defendant, raised the defendant's guidelines sentencing range from 108 to 135 months to 135 to 168 months. But as the statutory maximum for the offense of possession was only 120 months at the time of the offense, see 18 U.S.C. § 2252(a)(4)(B) (2011), the judge could not sen- tence him within the higher range. The sentence of 108 months that the judge imposed was the floor of the lower range. (The judge could have given him an even lower sentence; there is no statutory minimum sentence for possession of child pornography.) If as the de- fendant argues the two-level increase for distribution was error, he is entitled to be resentenced, because the increase in the guideline range may have influenced the sentence that the judge gave him.
"Distribution" in the guideline is a term of art, because it includes not only what a lay person would describe as "distribution" but also "posting material . . . on a website for public viewing," U.S.S.G. § 2G2.2, applica- tion note 1, whether or not anyone actually views it. The defendant admitted in an interview by police to having downloaded quantities of child pornography through two peer-to-peer file-sharing computer programs, FrostWire and LimeWire, but he denies know- ing that the files he downloaded could be viewed by other users of the programs.
The government denies that such knowledge is an element of the distribution guideline; it points out that the guideline does not specify that the defendant have acted knowingly. But we agree with the Eighth Circuit's decision in United States v. Durham, 618 F.3d 921, 926-27 (8th Cir. 2010)--and thus disagree with the recent deci-sion by the Tenth Circuit in United States v. Ray, 704 F.3d 1307, 1311-12 (10th Cir. 2013), which, surprisingly, does not cite or mention Durham--that the sentencing judge must find that the defendant either knew, or was reckless in failing to discover, that the files he was downloading could be viewed online by other people. It's true that by making child pornography accessible by other persons, even if unknowingly, a defendant may (if other persons do in fact access his files of child pornog- raphy--we don't know whether anyone did in this case) magnify the harm. See United States v. Laraneta, 700 F.3d 983, 991-92 (7th Cir. 2012). But strict liability is disfavored in the criminal context.
We are dealing with a 61-year-old man in very poor health who will receive a stiff prison sentence even if we vacate the current one, and who on release will be at low risk of recidivating because of the restrictions on access to online material that the conditions of super- vised release (not challenged by him) impose. The judge told him at sentencing: "I don't think that you will ever do this again because you're not going to have the op- portunity to do it again. Even when you get out, you're going to be under supervised release for a considerable period of time in which you will be monitored"--in fact 10 years. And the Sex Offender Registration and Notification Act imposes additional post-release restric- tions. 42 U.S.C. §§ 16901 et seq. The Act requires each state to maintain a sex offender registry, § 16912, and sex offenders to register in the state in which they live. § 16913. Illinois classifies persons convicted of child- pornography offenses as sex offenders and thus requires them to register, 730 ILCS 150/2(B)(1); 720 ILCS 5/11-20.1(a)(2), and forbids them to live within 500 feet of a school, park, or playground, 730 ILCS 150/8(a);
720 ILCS 5/11-9.3(d)(1)(i), (d)(2)(i), communicate with a minor other than the registrant's child or ward, 720 ILCS 5/11-9.3(b-20), or--of particular relevance to this case--have access to social networking websites while on supervised release. 730 ILCS 5/5-6-3.1(t).
The court in the Ray case based its ruling that the distri- bution guideline does not require that the defendant know that he's a distributor on the fact that the same application note that defines "distribution" defines
"distribution to a minor" as "knowing distribution to an individual who is a minor at the time of the offense."
U.S.S.G. § 2G2.2, application note 1 (emphasis added). Presumably the required knowledge is that the recipient is a minor, since in the absence of "knowing" it might well be assumed that liability is strict--that it's no defense that the minor looked like an adult--which was the traditional rule in statutory rape. To assume that by adding "knowing" to this definition the Sentencing Commission signaled that it's not required elsewhere in the guideline is a stretch.
In U.S. Sentencing Commission, Report to Congress:
Federal Child Pornography Offenses 33, 324 (Dec. 2012), www.ussc.gov/Legislative_and_Public_Affairs/Congress ional_Testimony_and_Reports/Sex_Offense_Topics/2012 12_Federal_Child_Pornography_Offenses/index.cfm (visited March 20, 2013), the Commission noted the disagreement between Ray and Durham and remarked that "the guideline could be amended to better dis- tinguish between more and less culpable distribution conduct." The Commission itself could of course amend the guidelines to make clear that knowledge is or is not required. But because of the strong influence that Congress traditionally has exerted on the Commission with respect to child pornography guidelines, see United States v. Garthus, 652 F.3d 715, 721 (7th Cir. 2011); Note, John Gabriel Woodlee, "Congressional Manipula- tion of the Sentencing Guideline for Child Pornography Possession," 60 Duke L.J. 1015, 1032-33 (2011), the Com- mission has been reluctant to amend those guide- lines without congressional guidance--which it has sought on past occasions. See U.S. Sentencing Commission, Report to the Congress: Sex Offenses Against Children 39- 41 (June 1996), www.ussc.gov/Legislative_and_Public_ Affairs/Congressional_Testimony_and_Reports/ Sex_Offense_Topics/199606_RtC_Sex_Crimes_Against_ Children/199606_RtC_SCAC.PDF (visited March 20, 2013). Congress responded to the request in the Protec- tion of Children from Sexual Predators Act of 1998, Pub. L. No. 105-314, 112 Stat. 2974, 2982, § 506.
A person who downloads files from a file-sharing program might, though knowing that the downloaded files were accessible by other subscribers to the pro- gram, not realize that this made him a "distributor." And while persons generally are charged with knowledge of the criminal law (though with exceptions, see, e.g., Cheek v. United States, 498 U.S. 192, 199-201 (1991); Lambert v. California, 355 U.S. 225, 228 (1957)), it is not clear whether this presumption extends to advisory sen- tencing guidelines. United States v. Ortiz-Graulau, 526 F.3d 16, 19 (1st Cir. 2008), intimates that it may not. See also United States v. Chavez-Diaz, 444 F.3d 1223, 1230 (10th Cir. 2006). No matter; the defendant has made no issue of his knowledge of the ...