GUIDELINES LANGUAGE

USSG § 2G2.1(b)(3):
“If the defendant knowingly engaged in distribution, increase by 2 levels.”
The application notes specify that the defendant “knowingly engaged in distribution” if they:

1. 1. Knowingly committed the distribution
   2. Aided, abetted, counseled, commanded, induced, procured, or willfully caused the distribution, or
   3. Conspired to distribute [1]

The commentary 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. Accordingly, 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.”

[1] U.S.S.G. 2G2.1 Application Notes

KNOWINGLY

The Fifth Circuit found that a defendant knowingly engaged in distribution by coercing a minor to produce child pornography and send it to his phone.[2]

[2] United States v. McGavitt, 28 F.4th 571, 576 (5th Cir.), cert. denied, 143 S. Ct. 282, 214 L. Ed. 2d 113 (2022)

DISTRIBUTION

Many Circuits have held that the phrases “any” and “related to” in the definition of “distribution” give expansive breadth to the term.[3]

The Ninth Circuit applied the enhancement when pornographic images were transferred to a minor victim depicted in the images, reasoning that “distribution” does not require a third party.[4]

The Eighth Circuit applied the enhancement when evidence confirmed that the defendant had shared child pornography on the internet.[5]

In a case where the defendant failed to demonstrate that the presentence report was inaccurate, and the district court did not err in finding that the defendant’s “relative conduct” (assisting in the production of the images) related to his co-defendant distribution of the images, the Fifth Circuit applied the enhancement.[6]

[3] United States v. Roybal, 737 F.3d 621 (9th Cir. 2013); United States v. Hecht, 470 F.3d 177 (4th Cir. 2006); United States v. Grzybowicz, 747 F.3d 1296 (11th Cir. 2014)

[4] United States v. Hernandez, 894 F.3d 1104, 1109 (9th Cir. 2018)

[5] United States v. Cramer, 962 F.3d 375 (8th Cir. 2020)

[6] United States v. Odom, 694 F.3d 544, 548 (5th Cir. 2012)

PEER-TO-PEER FILE SHARING

Prior to the 2016 Amendment adding the knowledge requirement to 2G2.1(b)(3), every Circuit to address the issue held that a defendant’s knowing use of a peer-to-peer file-sharing program that allowed others to access child pornography on the defendant’s computer qualifies as distribution.[7] The enhancement therefore applied if the defendant did not intend to distribute but knew that using a peer-to-peer file-sharing program made child pornography accessible to others in the network.[8]

The Eighth Circuit presumed that any defendant who used a file-sharing program did so knowingly unless there was “concrete evidence of ignorance.”[9] Similarly, the Tenth Circuit held that the enhancement applied to defendants who used file-sharing programs even when there was no evidence that they knowingly shared files with others.[10]

[7] United States v. Bolton, 669 F.3d 780, 782–83 (6th Cir. 2012); United States v. Spriggs, 666 F.3d 1284, 1287 (11th Cir. 2012); United States v. Layton, 564 F.3d 330, 335 (4th Cir. 2009); United States v. Geiner, 498 F.3d 1104, 1111 (10th 2007); United States v. Carani, 492 F.3d 867, 876 (7th Cir. 2007); United States v. Chiaradio, 684 F.3d 265, 282 (1st Cir. 2012); United States v. Budziak, 697 F.3d 1105, 1109 (9th Cir. 2012)

[8] United States v. Ramos, 695 F.3d 1035, 1041(10th Cir. 2012)

[9] United States v. Dodd, 598 F.3d 449, 452 (8th Cir. 2010); United States v. Glassgow, 682 F.3d 1107, 1110 (8th Cir. 2012); United States v. Durham, 618 F.3d 921 (8th Cir. 2010)

[10] United States v. Ray, 699 F.3d 1172, 1177–78 (10th Cir. 2012)