Appeals from the United States District Court for the Northern District of Florida. D.C. Docket No. 4:14-cr-00001-MW-CAS-1.
For United States of America, Plaintiff - Appellee: Jason Sterling Beaton, Stephen M. Kunz, Assistant U.S. Attorney, Pamela C. Marsh, U.S. Attorney's Office, Tallahassee, FL; Robert G. Davies, U.S. Attorney's Office, Pensacola, FL.
For Donald Eugene Creel, Defendant - Appellant: Jennifer Hart, Federal Public Defender's Office, Pensacola, FL; Randolph Patterson Murrell, Federal Public Defender's Office, Tallahassee, FL.
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) (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.
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, 162 L.Ed.2d 781 (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. § § 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 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 ...