GUIDELINES LANGUAGE

(3) (Apply the greatest):

(A) If the offense involved distribution for pecuniary gain, increase by the number of levels from the table in §2B1.1 (Theft, Property Destruction, and Fraud) corresponding to the retail value of the material, but by not less than 5 levels.

(F) If the defendant knowingly engaged in distribution, other than distribution described in subdivisions (A) through (E), increase by 2 levels.

History

• Nov. 1, 1987: § 2G2.2(b)(2) added to guidelines: “If the offense involved distribution, increase by the number of levels … corresponding to the retail value of the material, but in no event less than 5 levels.”
• Nov. 1, 2000: § 2G2.2(b)(2): “(Apply the Greatest) if the offense involved:
  • (A) Distribution for pecuniary gain, increase by the number of levels from the table in §2F1.1 (Fraud and Deceit) corresponding to the retail value of the material, but by not less than 5 levels.
  • (B) Distribution for the receipt, or expectation of receipt, of a thing of value, but not for pecuniary gain, increase by 5 levels.
  • (C) Distribution to a minor, increase by 5 levels.
  • (D) Distribution to a minor that was intended to persuade, induce, entice, coerce, or facilitate the travel of, the minor to engage in prohibited sexual conduct, increase by 7 levels.
  • (E) Distribution other than distribution described [above], increase by 2 levels”
• April 30, 2003: Changed table in §2F1.1 (Fraud and Deceit) to the table in §2B1.1 (Theft, Property Destruction, and Fraud)
• Nov. 1, 2004: Changed to § 2G2.2(b)(3).

SECTION (A) – PECUNIARY GAIN

• If the offense involved distribution for pecuniary gain, increase by the number of levels from the table in § 2B1.1 (Theft, Property Destruction, and Fraud) corresponding to the retail value of the material, but by not less than 5 levels.

Table in § 2B1.1:

The Tenth Circuit found that applying five-level enhancement for distributing material for receipt of something of value, but not for pecuniary gain, rather than two-level enhancement for distribution without expected gain, was unwarranted.

The Seventh Circuit found that the enhancement was warranted when a defendant offered to sell offensive material. They ruled that “distribution” includes a single sale, and that pecuniary gain included receiving money in return for child pornography in a blackmail attempt.

It is worth noting that 2G2.2(b)(3)(A) is the only Specific Offense Characteristic that does not include an express mens rea element, either in its language or in the commentary related to it. The Supreme Court ruled that the “deliberate omission of [a] word” that appears in an adjacent textual provision “compels the conclusion” that the omitted word should not be implied.

Prior to the guidelines being split into different characteristics of distribution, most circuits agree that a distribution enhancement is warranted even in cases where the distribution of images was not made for pecuniary gain. However, the Ninth Circuit decided that this enhancement applies only for distribution for pecuniary gain.

SECTION (B): VALUABLE CONSIDERATION

Prior to 2016, the enhancement was warranted even in cases where the distributor reasonably expects to receive something of value in return (including more pornography), even without a specific agreement or understanding between them and the recipient.[7] However, a 2016 amendment removed the “expectation of receipt” language. Now, the Sixth and Fifth Circuits have clarified that for this enhancement to apply, the defendant must have:

1. Agreement to an exchange with another person under which
2. the defendant knowingly distributed child pornography to that other person
3. For the specific purpose of obtaining something of valuable consideration in return.

Therefore, a mere belief or expectation that a defendant will receive something of value in exchange for distribution is insufficient. Now, the distribution must be a part of upholding an obligation as a part of an express agreement with another person. However, the Fifth Circuit requires an additional element that the valuable consideration came from the other person, i.e. that the defendant actually receives the thing of value, while the Sixth Circuit explicitly rejects this requirement for the enhancement to apply.[8]

The Eighth, Ninth, and Tenth Circuits found that this enhancement can apply to defendants who share child pornography files using a peer-to-peer file sharing program, but that the government has the burden of proving that the defendant expected to receive something of value when using a file-sharing software.[9] This being said, the Eighth Circuit acknowledges that the very purpose of a file-sharing program is to share, and therefore distribute, so simply knowing use of a file-sharing network established that the defendant expected to receive child pornography in return for distribution[10], and in 2010 they set a standard requiring concrete evidence of a defendant’s ignorance of a program’s ability to distribute in order for this enhancement to not apply. [11] The Tenth Circuit disagreed, characterizing Griffin as requiring the enhancement “automatically” for every defendant who downloads and shares child pornography on a file-sharing network, and instead requiring that the facts show that the defendant expected something in return for their sharing of child pornography.[12]

In a case in which a defendant sent and received files via email, but with no evidence that they expected to receive something of value in return, the Eighth Circuit ruled that the district court erred in applying the enhancement.[13]

Providing another user with access to child pornography on peer-to-peer file-sharing software with the expectation that they would provide access to their collection in turn is sufficient to establish that the defendant distributed child pornography in anticipation of receiving something of value, and thus the enhancement applies.[14]

[7] United States v. Hernandez, 795 F.3d 1159 (9th Cir. 2015); United States v. Geiner, 498 F.3d 1104 (10th Cir. 2007); United States v. Maneri, 353 F.3d 165 (2d Cir. 2003); United States v. Whited, 539 F.3d 693 (7th Cir. 2008)

[8] United States v. Oliver, 919 F.3d 393, 401 (6th Cir. 2019); United States v. Halverson, 897 F.3d 645 (5th Cir. 2018)

[9] United States v. Moore, 572 F.3d 489 (8th Cir. 2009); United States v. Ultsch, 578 F.3d 827 (8th Cir. 2009); United States v. Dolehide, 663 F.3d 343 (8th Cir. 2011); United States v. Hernandez, 795 F.3d 1159 (9th Cir. 2015); United States v. Geiner, 498 F.3d 1104, 1111 (10th Cir. 2007); United States v. Lynch, 757 F.3d 780 (8th Cir. 2014)

[10] United States v. Griffin, 482 F.3d 1008 (8th Cir. 2007)

[11] United States v. Dodd, 598 F.3d 449 (8th Cir. 2010)

[12] United States v. Geiner, 498 F.3d 1104 (10th Cir. 2007)

[13] United States v. Mayokok, 854 F.3d 987, 991 (8th Cir. 2017)

[14] United States v. Bennett, 839 F.3d 153 (2d Cir. 2016), as amended (Oct. 7, 2016); United States v. Groce, 784 F.3d 291, 295 (5th Cir. 2015)

SECTION (C): DISTRIBUTION TO A MINOR

This enhancement has a knowledge requirement: “‘distribution to a minor’ means the knowing distribution to an individual who is a minor at the time of the offense.” [15]

The guidelines commentary (added in 2004) defines a minor as follows:

1. An individual who had not attained the age of 18 years;
2. An individual, whether fictitious or not, who a law enforcement officer represented to a participant
   1. Had not attained the age of 18 years, and
   2. Could be provided for the purposes of engaging in sexually explicit conduct; or
3. An undercover law enforcement officer who represented to the participant that the officer had not attained the age of 18 years.[16]

The Eleventh Circuit ruled that this enhancement only applies when the person who received child pornography was actually a minor or when a law enforcement officer represented themself as a minor. It is improper to apply it based on the defendant’s belief that the recipient was a minor without making a finding as to whether they were actually a minor.[17] The Eighth Circuit adopted a lesser standard, simply requiring that there is evidence to support the finding that the recipient was a minor, even if it is possible that they misrepresented their age.[18]

The Eighth Circuit found that a defendant placing child pornography in a place where the minor knew it was, and the minor later retrieved it (even without viewing it), is sufficient to support the enhancement for distribution to a minor.[19]

District courts found that applying a five-level enhancement for distributing to an undercover law enforcement officer posing as a minor prior to the commentary amendment’s substantial change was not warranted.[20]

[15] U.S.S.G. 2G2.2

[17] United States v. Fulford, 662 F.3d 1174 (11th Cir. 2011)

[18] United States v. Hansel, 524 F.3d 841 (8th Cir. 2008)

[19] United States v. Clawson, 408 F.3d 556, 558 (8th Cir. 2005)

[20] United States v. Iles, 384 F. Supp. 2d 901 (E.D. Va. 2005); United States v. O’Daniel, 328 F. Supp. 2d 1168, 1183 (N.D. Okla. 2004)

SECTION (D): DISTRIBUTION TO INDUCE MINOR TO ENAGE IN OTHER ILLEGAL ACTIVITY

(D) If the offense involved distribution to a minor that was intended to persuade, induce, entice, or coerce the minor to engage in any illegal activity, other than illegal activity covered under subdivision (E), increase by 6 levels

The Ninth Circuit interpreted “distribution” broadly in accordance with 2G2.2 and its commentary: “any act, including…transmission…, related to the transfer of material involving the sexual exploitation of a minor.” They did not decide whether “showing” child pornography to a minor was sufficient to constitute “distribution,” but found that allowing a minor to print copies of child pornography qualified as distribution. [21]

[21] United States v. Roybal, 737 F.3d 621, 624 (9th Cir. 2013)

SECTION (E): DISTRIBUTION TO FACILITATE TRAVEL OF MINOR

(E) If the offense involved distribution to a minor that was intended to persuade, induce, entice, coerce, or facilitate the travel of, the minor to engage in prohibited sexual conduct, increase by 7 levels.

The D.C. Circuit found that this enhancement applies when the defendant engages in knowing distribution to a minor through an intermediary, in this case where he consented to an undercover officer’s showing of child pornography to his fictitious daughter during a conversation in which he asked the officer to bring his daughter to Chicago for the purpose of having sex with her. [22]

In a case where the defendant argues that the images he sent were not intended to entice a minor because he did not send them until after they had arranged a meeting, the Second Circuit enforced the enhancement because the images were sent as part of a “grooming” process. [23]

[22] United States v. Love, 593 F.3d 1, 8 (D.C. Cir. 2010)

[23] United States v. Dorvee, 616 F.3d 174, 180 (2d Cir. 2010)

SECTION (F): OTHER DISTRIBUTION

G2.2(b)(3)(F) was amended in 2016 to include a knowledge requirement. Prior to this amendment, the government was not required to show that the defendant knew that other users of file-sharing programs could access child pornography on their computer. Now, the mere use of file-sharing programs is not sufficient to trigger this enhancement.[24] Instead, it applies when a defendant knows that their use of such a network makes their child pornography files accessible to others.[25]

Almost all circuits agree that knowingly placing child pornography files in a shared folder on a file-sharing network constitutes distribution, even if no one actually obtains an image from the folder.[26]

The commentary clarifies that the defendant “knowingly engaged in distribution” if they (A) knowingly committed the distribution, (B) aided, abetted, counseled, commanded, induced, procured, or willfully caused the distribution, or (C) conspired to distribute.[27]

This enhancement applies regardless of whether a defendant’s primary purpose is to distribute child pornography by placing it in a file-sharing program.[28]

[24] United States v. Creel, 783 F.3d 1357 (11th Cir. 2015); United States v. Montanez-Quinones, 911 F.3d 59 (1st Cir. 2018); United States v. Baker, 742 F.3d 618 (5th Cir. 2014); United States v. Baldwin, 743 F.3d 357, 360 (2d Cir. 2014); United States v. Ray, 704 F.3d 1307 (10th Cir. 2013); United States v. Bolton, 669 F.3d 780, 781 (6th Cir. 2012)

[25] United States v. Lawrence, 920 F.3d 331, 333 (5th Cir. 2019)

[26] United States v. Farney, 513 F. App’x 114 (2d Cir. 2013); United States v. Layton, 564 F.3d 330 (4th Cir. 2009); United States v. Conner, 521 F. App’x 493 (6th Cir. 2013); United States v. Carani, 492 F.3d 867 (7th Cir. 2007); United States v. Glassgow, 682 F.3d 1107 (8th Cir. 2012); United States v. Ramos, 695 F.3d 1035 (10th Cir. 2012); United States v. Spriggs, 666 F.3d 1284 (11th Cir. 2012)

[27] U.S.S.G. 2G2.2

[28] United States v. Reingold, 731 F.3d 204, 230 (2d Cir. 2013)