United States v. Reed , 541 F. App'x 112 ( 2013 )

11-4820-cr
United States v. Reed
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO
A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007 IS PERMITTED AND IS
GOVERNED BY FEDERAL RULE OF APPELLAT E PROCEDURE 32.1 AND THIS COURT' S
LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED
WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH TH E NOTATION "SUMMARY ORDER" ). A PARTY
CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT
REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Thurgood Marshall United
States Courthouse, 40 Foley Square, in the City of New York, on
the 12th day of November, two thousand thirteen.
PRESENT: Ralph K. Winter,
Rosemary S. Pooler,
Denny Chin,
Circuit Judges.
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UNITED STATES OF AMERICA,
Appellee,
-v- 11-4820
JESSE REED,
Defendant-Appellant.
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FOR APPELLEE: Tamara B. Thompson and Brenda K.
Sannes, Assistant United States
Attorneys, for Richard S. Hartunian,
United States Attorney for the Northern
District of New York, New York.
FOR DEFENDANT-APPELLANT: Charles F. Willson, Nevins Law Group
LLC, East Hartford, Connecticut.
Appeal from the United States District Court for the
Northern District of New York (Mordue, J.).
UPON DUE CONSIDERATION, IT IS ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court is VACATED and
the case is REMANDED for further proceedings.
Defendant-appellant Jesse Reed pled guilty, without a
plea agreement, to one count of receipt of child pornography, in
violation of 18 U.S.C. § 2252A(a)(2)(A), and one count of
possession of child pornography, in violation of 18 U.S.C.
§ 2252A(a)(5)(B). The district court (Mordue, J.) sentenced
Reed principally to 120 months' imprisonment on each count, to
be served concurrently.
On appeal, Reed challenges the procedural
reasonableness of his sentence, specifically the district
court's two-level increase in his offense level pursuant to U.S.
Sentencing Guidelines Manual ("U.S.S.G." or "Guidelines")
§ 2G2.2(b)(3)(F). We apply de novo review to the district
court's rulings on questions of law, including Guidelines
interpretation, and clear-error review to its rulings on
questions of fact, including those that inform Guidelines
2
application. See United States v. Legros, 529 F.3d 470, 474 (2d
Cir. 2008).1
We assume the parties' familiarity with the underlying
facts, the procedural history of the case, and the issues
presented for review.
Section 2G2.2(b)(3) of the Guidelines provides a range
of enhancements for child pornography offenses involving
distribution. A five-level enhancement applies if the offense
involved distribution "for the receipt, or expectation of
receipt, of a thing of value, but not for pecuniary gain."
§ 2G2.2(b)(3)(B). Pursuant to § 2G2.2(b)(3)(F), a two-level
enhancement applies if the offense involved distribution other
than distribution described in § 2G2.2(b)(3)(A) through (E).
We recently held in United States v. Reingold, 731
F.3d 204 (2d Cir. 2013), that the distribution enhancement under
U.S.S.G. § 2G2.2(b)(3)(F) applies when a defendant "knowingly
plac[es] child pornography files in a shared folder on a
peer-to-peer file-sharing network . . . even if no one actually
obtains an image from the folder." Id. at 229 (internal
quotation marks and citation omitted). Accordingly, while there
is no requirement of intent to distribute for § 2G2.2(b)(3)(F)
1
The government argues that plain error review applies as Reed did
not specifically object to the two-level enhancement. We disagree. Reed
made a lack of knowledge argument in opposing the five-level enhancement.
3
to apply, there is a knowledge requirement: the defendant must
know that depositing files into the folder will make the files
available to others. Indeed, we observed that the record in
Reingold made "plain that [defendant] . . . knew from the start
that distribution was a necessary condition of
receipt . . . and, with that knowledge, took deliberate and
purposeful actions to effect that distribution." Id. (internal
citations omitted).
Reed argues that there is insufficient evidence to
support the district court's application of a two-level
enhancement pursuant to § 2G2.2(b)(3)(F). We do not decide the
legal sufficiency of the evidence, but we remand for further
proceedings. Where, as here, the district court failed to make
a finding of fact necessary to apply an enhancement under the
Guidelines, we vacate the sentence and remand the case for
further proceedings. See, e.g., United States v. Scotti, 47
F.3d 1237, 1251-52 (2d Cir. 1995).
The pre-sentence report recommended a five-level
enhancement pursuant to § 2G2.2(b)(3)(B). In his sentencing
memorandum, Reed objected to the enhancement, arguing "[t]here
is no proof in the probation report or in any of the discovery
materials . . . that Mr. Reed was aware of or made a conscious
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decision to activate 'file sharing' on his computer because he
received or expected to receive something of value." At
sentencing, the district court agreed that the five-level
enhancement was unwarranted "because there is no evidence that
[Reed] shared or distributed child pornography in anticipation
of or while reasonably believing in the possibility of the
receipt of child pornography in return." Instead, the district
court explained it was applying the two-level enhancement
pursuant to § 2G2.2(b)(3)(F) "because the forensic evidence
confirms that more than 600 image and video files of child
pornography were located in peer-to-peer sharing folders on
[Reed's] computer and these files are being offered for
sharing."
The district court did not, however, make any finding
as to whether Reed "knowingly plac[ed]" child pornography files
into shared folders. Reingold, 731 F.3d at 229 (internal
quotation marks and citation omitted). Indeed, Reed
specifically argued, albeit in the context of the enhancement
under § 2G2.2(b)(3)(B), that there was no evidence that he was
aware "file sharing" was activated on his computer.
We acknowledge that there is evidence in the record
that Reed was a sophisticated and long-time computer user.
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While these facts arguably could support an inference that Reed
knew he was placing files in a peer-to-peer sharing folder, the
district court did not make such a finding, as Reingold
requires. We remand in accordance with the procedures of United
States v. Jacobson, 15 F.3d 19, 22 (2d Cir. 1994), for the
district court to consider the question, after giving the
parties an opportunity to be heard.2
Accordingly, we VACATE the judgment of the district
court and REMAND the case for further proceedings as consistent
with this order.
FOR THE COURT:
Catherine O'Hagan Wolfe, Clerk
2
In the interest of judicial economy, this panel will retain
jurisdiction over any subsequent appeal. See Jacobson, 15 F.3d at 22.
Accordingly, either party may notify the Clerk of a renewed appeal within
fourteen days of the district court's decision.
6