    11-2826-cr
    United States v. Reingold


                                      UNITED STATES COURT OF APPEALS

                                             FOR THE SECOND CIRCUIT


                                                August Term, 2011

                                (Argued: May 4, 2012    Decided: September 26, 2013)

                                               Docket No. 11-2826-cr


                                            UNITED STATES OF AMERICA,

                                                                        Appellant,

                                                       —v.—

                                                 COREY REINGOLD,

                                                                 Defendant-Appellee.*
                                                _________________
    Before:
                                      SACK, RAGGI, and LOHIER, Circuit Judges.
                                                               ______

              On appeal from a judgment of conviction entered in the United States District Court

    for the Eastern District of New York (Weinstein, Judge), following defendant’s guilty plea

    to one count of distributing child pornography, see 18 U.S.C. § 2252(a)(2), the United States

    challenges defendant’s 30-month prison sentence, arguing that the district court erred in

    (1) refusing to impose the five-year minimum sentence mandated by 18 U.S.C. § 2252(b)(1)



              *
1                 The Clerk of Court is directed to amend the official caption as shown above.

                                                         1
on the ground that it constituted cruel and unusual punishment as applied to this defendant,

and (2) not applying certain Sentencing Guidelines enhancements in calculating defendant’s

Guidelines range.

       REMANDED FOR RESENTENCING.

       Judge Sack concurs in a separate opinion.
                               _____________________

              ALI KAZEMI (Amy Busa, on the brief), Assistant United States Attorneys, for
              Loretta E. Lynch, United States Attorney for the Eastern District of New York,
              Brooklyn, New York, for Appellant.

              COLLEEN P. CASSIDY, Appeals Bureau, Federal Defenders of New York, Inc.,
              New York, New York, for Defendant-Appellee.


REENA RAGGI, Circuit Judge:

       Corey Reingold pleaded guilty in the United States District Court for the Eastern

District of New York (Jack B. Weinstein, Judge) to one count of distributing child

pornography. See 18 U.S.C. § 2252(a)(2). The United States now appeals from that part of

the June 21, 2011 judgment of conviction as sentenced Reingold to 30 months’ incarceration.

The government contends that the district court erred in refusing to impose the minimum

five-year prison term mandated by 18 U.S.C. § 2252(b)(1) on the ground that applying such

a punishment to this immature 19-year-old defendant would violate the Cruel and Unusual

Punishment Clause. See U.S. Const. amend. VIII. The government further disputes the

district court’s Sentencing Guidelines calculations.     The district court explained its

sentencing decisions both on the record and in a 401-page opinion accompanied by 55 pages


                                             2
of appendices. See United States v. C.R., 792 F. Supp. 2d 343 (E.D.N.Y. 2011).2 Having

carefully reviewed that opinion, the applicable law, and the record as a whole, we conclude

that the district court erred in both respects identified by the government. We therefore

remand the case to the district court with directions that it vacate the sentence and resentence

the defendant consistent with this opinion.

I.     Background

       A.      Events Leading to Reingold’s Prosecution

       On November 16, 2008, an agent of the Federal Bureau of Investigation (“FBI”),

investigating child pornography in an undercover capacity, accessed a computer program

called “GigaTribe,” which allows users to download material onto their computers and then

to place some in folders designated for sharing with others. For GigaTribe users to access


       2
          In its opinion, as well as in various filings, the district court referred to Reingold by
his initials “C.R.” We note that, at the same time, Reingold was identified by his full name
in certain documents that remain electronically available from the files of the Eastern District
of New York.
        We identify no basis in law for shielding the identity of an adult criminal defendant.
Cf. Fed. R. Crim. P. 49.1 (providing privacy protections in limited circumstances). No
different conclusion obtains from United States v. Amodeo, 71 F.3d 1044 (2d Cir. 1995),
cited by Reingold. At issue in that case was the propriety of unsealing an investigative report
that, among other things, would have identified confidential informants in an ongoing
criminal investigation and circulated anonymous and unverified accusations of doubtful
veracity against uncharged persons. See id. at 1047–48. By contrast, as the named adult
defendant in a criminal case in which he has been adjudicated guilty, Reingold has no
expectation of privacy in his identity. See id. at 1048 (noting public’s presumptive right of
access to information pertaining to judicial adjudications); cf. id. at 1050–51 (recognizing
that privacy interests of “innocent third parties” may warrant exception to presumption of
public access). We therefore refer to Reingold by his name on our docket and in this opinion.
 Nevertheless, because the district court’s published opinion is reported as United States v.
C.R., we cite it as such.

                                                3
each other’s designated sharing folders, they must be on the same “closed network of

buddies,” which is accomplished by invitation. Id. at 352 (internal quotation marks omitted)

(citing United States v. Ladeau, No. 09-CR-40021-FDS, 2010 WL 1427523, at *1 (D. Mass.

Apr. 7, 2010) (describing operation of GigaTribe)).

       When the undercover agent accessed GigaTribe on November 16, he observed child

pornography in the mini-profile of a person with the username “Boysuck0416.” The agent

also noted that this user’s full profile contained the terms “Boy Love KDV PJK BCP,” which

the agent identified as child pornography search terms. The agent invited the user to share

files, and after the user agreed, the agent downloaded ten videos and one still image of child

pornography from the user’s designated share folder. See United States v. Ladeau, 2010 WL

1427523, at *1 (“A user can also join the networks of other GigaTribe users, but only with

the permission of the user who created the network.”). He then proceeded to trace the user’s

Internet Protocol address to a residence at 3-14 Beach 147th Street in Queens, New York,

which turned out to be the home of Jamie and Brian McLeod, the mother and stepfather of

defendant Corey Reingold.

       On January 15, 2009, FBI agents executed a search warrant at the McLeod home and

seized two computers used exclusively by Reingold, each of which contained child

pornography. Reingold, who was present at the time of the search, admitted that he was

“Boysuck0416”; that he had opened a GigaTribe account in November 2008 and used it and

another file sharing program, LimeWire, to download “a ton” of child pornography onto the

seized computers; and that he had shared child pornography files in designated folders with

                                              4
between 10 and 20 other GigaTribe users. Pre-Sentence Report (“PSR”) ¶ 9; see United

States v. C.R., 792 F. Supp. 2d at 353. Subsequent forensic analysis would confirm that the

seized Reingold computer linked to GigaTribe contained more than 100 video files and at

least 208 digital images of child pornography, while the seized computer linked to LimeWire

contained 10 videos of child pornography.

       B.     Reingold’s Admissions to Sexual Conduct with Minors

       As part of initial plea negotiations with federal prosecutors, Reingold agreed to take

a polygraph examination with the understanding that he would be allowed to plead guilty to

simple possession of child pornography, see 18 U.S.C. § 2252(a)(4)(B),3 if he could

truthfully state that he had not had any sexual contact with minors. Even before the

polygraph examination, however, Reingold admitted to federal authorities that he had

engaged his minor half-sister in sexual activities on three occasions over a course of three

years. Specifically, Reingold stated that (1) when he was 15 and his sister eight, he had the

child manually stimulate his penis; (2) when Reingold was 16 and his sister nine, he again

had the girl manually stimulate his penis while he rubbed his hand over her vagina through

her underwear; and (3) when Reingold was 18 and his sister 11, he had the girl manually

stimulate his penis while he rubbed her vagina both over and beneath her underwear.

Reingold subsequently admitted that during this third sexual encounter, he also coached the

child to perform oral sex on him and, in turn, performed oral sex on her.4


       3
        A violation of 18 U.S.C. § 2252(a)(4)(B) carries no mandatory minimum penalty but
is punishable by a prison term of “not more than 10 years.” 18 U.S.C. § 2252(b)(2).
       4
         Reingold further admitted that, at times when he was either 18 or 19, he had engaged
three friends who were minors in sexual activity: (1) a 15-year-old boy whose penis

                                             5
       C.     Plea and Sentencing

              1.     Entry and Acceptance of Reingold’s Guilty Plea

       On March 18, 2009, Reingold was indicted by a grand jury sitting in the Eastern

District of New York on four counts of distributing child pornography based on the

GigaTribe “sharing” of four specified video files to the undercover agent on November 17,

2008, see 18 U.S.C. § 2252(a)(2), (b)(1); and one count of possessing child pornography, see

id. § 2252(a)(4)(B), (b)(2). On September 16, 2009, Reingold pleaded guilty before a

magistrate judge to the first distribution count.

       Before formally accepting Reingold’s guilty plea and in anticipation of sentencing,

the district court conducted hearings between September 2009 and May 2011 where it heard

from “a dozen expert witnesses in the fields of child sexual abuse; online child pornography;

risk assessment; treatment of sex offenders; and neuropsychology and adolescent brain

development.” United States v. C.R., 792 F. Supp. 2d at 349. Together with prosecutors,

defense counsel, and two of his law clerks, the district judge also traveled to Massachusetts

and personally toured FMC Devens, the Bureau of Prisons facility that offers inmates sex

offender treatment. See id. at 520–24.

       On May 10, 2011, the initial sentencing date, the district court declined to accept

Reingold’s guilty plea before the magistrate judge, questioning whether the undercover

agent’s retrieval of child pornography from Reingold’s designated shared folder on


Reingold had stimulated to the point of ejaculation; (2) a 15-year-old girl with whom
Reingold had performed mutual genital stimulation and oral sex; and (3) a 16-year-old girl
whose vagina Reingold had touched through her sweat pants. Because the government
focuses on Reingold’s sexual activity with his sister rather than these other encounters in
making certain arguments on appeal, we do not discuss this additional conduct further.

                                               6
GigaTribe was enough to make the defendant guilty of distribution under 18 U.S.C.

§ 2252(a)(2). Although the government and defense counsel both urged acceptance of the

plea,5 the district court adjourned the case to May 16, 2011, to allow it to consider the matter

further.

       On May 16, 2011, the district court accepted Reingold’s guilty plea. On the record,

it explained that its acceptance was “based on the allocution and all other information now

known to me.” May 16, 2011 Sentencing Tr. 5:21–22. In its published opinion filed the

same day, however, the district court expressed continued reservations as to whether the

defendant had adequately admitted knowing and intentional distribution of child pornography

as proscribed by 18 U.S.C. § 2252(a)(2). See United States v. C.R., 792 F. Supp. 2d at

353–55 (construing statute to require proof of both “active intent[]” to transfer child

pornography to another person and “active participation” in delivery of such pornography).6

In the end, however, the district court accepted the guilty plea, explaining that the statute’s

distribution element might be construed to reach Reingold’s conduct; that “a jury could

reasonably find that [Reingold] was not truthful when he testified that he did not intend to

distribute his files to another individual”; that a court can accept a guilty plea even when a

defendant maintains his innocence, “as long as there is a strong factual basis for the plea”;


       5
         Defense counsel submitted that a guilty plea to a distribution count carrying a
five-year minimum was in Reingold’s interest because the government was considering
superseding the indictment to add an advertising charge carrying a 15-year mandatory
minimum sentence. See 18 U.S.C. § 2251(d)(2), (e).
       6
         In hearings conducted by the district court, Reingold stated that his goal in
participating in the GigaTribe website was “to receive child pornography.” United States v.
C.R., 792 F. Supp. 2d at 354. Nevertheless, “in achieving that goal he knew that he had to
make his child pornography files available to others.” Id.

                                               7
and that the record showed Reingold to have thoroughly considered his decision to plead

guilty with the support of close relatives and able counsel, and to have demonstrated a wish

to accept responsibility for his conduct. Id. at 356–57 (citing North Carolina v. Alford, 400

U.S. 25, 37–38 (1970)).7

              2.      Reingold’s Sentencing

       In its PSR to the district court, the Probation Department advised that Reingold’s

crime of conviction was subject to a mandatory minimum prison sentence of five years

pursuant to 18 U.S.C. § 2252(b)(1). Further, based on Sentencing Guidelines calculations

yielding a total offense level of 35 and a criminal history category of I, the PSR reported that

Reingold’s recommended sentencing range was 168 to 210 months’ imprisonment.8

       The district court viewed the case quite differently.         Rejecting the Probation

Department’s application of various enhancements to Reingold’s Guidelines calculation, the

district court concluded that the applicable Sentencing Guidelines range in Reingold’s case

was 63 to 78 months’ imprisonment.9 The district court further determined that Reingold


       7
        Because no party challenges the sufficiency of Reingold’s plea allocution or of these
findings by the district court in support of its decision to accept the plea, we deem any
challenge to the plea itself forfeited and do not discuss it further in this opinion.
       8
         The Probation Department arrived at offense level 35 by starting with a base offense
level of 22, see U.S.S.G. § 2G2.2(a)(2), to which it added two points for the presence of
pre-pubescent images, see id. § 2G2.2(b)(2); two points for distribution in a manner not
otherwise described in the Guidelines, see id. § 2G2.2(b)(3)(F); five points for a pattern of
abuse, based on Reingold’s molestation of his half-sister, see id. § 2G2.2(b)(5); two points
for use of a computer, see id. § 2G2.2(b)(6); and five points for possession of 600 or more
images of child pornography, see id. § 2G2.2(b)(7)(D); after which it subtracted three points
for timely acceptance of responsibility, see id. § 3E1.1.
       9
        The district court agreed that Reingold’s base offense level was 22, that
enhancements were warranted for the presence of pre-pubescent images and for the

                                               8
should not be sentenced even within that reduced Guidelines range because such a term of

imprisonment was greater than necessary to achieve the objectives of 18 U.S.C. § 3553(a).

Insofar as Congress had statutorily mandated a prison sentence of at least five years for any

defendant guilty of distributing child pornography, the district court concluded that such a

sentence would constitute cruel and unusual punishment in Reingold’s case given his

particular immaturity and the relative passivity of his crime. See United States v. C.R., 792

F. Supp. 2d at 509–10. Accordingly, the district court sentenced Reingold to 30 months’

imprisonment, five years’ supervised release, and a $100 special assessment.                    It

recommended that Reingold serve his term in the FMC Devens Sex Offender Treatment

Program and allowed him to self-surrender.10

II.    Discussion

       A.      Eighth Amendment Challenge to Five-Year Mandatory Minimum

       The government argues that the district court was legally obligated to sentence


possession of 600 or more images of child pornography, and that a reduction was warranted
for timely acceptance of responsibility. See United States v. C.R., 792 F. Supp. 2d at
511–12. But it declined to impose any distribution enhancement, concluding that Reingold’s
“actions did not constitut[e] distribution under the statute.” Id. at 511. The district court also
rejected application of the pattern of abuse enhancement because two of the incidents with
Reingold’s half-sister had occurred while Reingold was a minor, see id., and the trio of
activities “were aberrant acts separated by long periods, in large measure, due to the failure
of proper parental supervision,” May 16, 2011 Sentencing Tr. 15:24–16:1. Finally, the
district court concluded that application of the computer-use enhancement would “result[]
in double counting and is not sufficiently particularized to the facts of the case.” United
States v. C.R., 792 F. Supp. 2d at 512. Accordingly, the district court calculated Reingold’s
total offense level at 26, which with a criminal history category of I, yielded an advisory
Guidelines imprisonment range of 63 to 78 months.
       10
         The government argues that self-surrender was precluded by 18 U.S.C.
§ 3143(c)(1). Because Reingold did surrender and is now imprisoned, the point is moot,
which the government concedes, and we do not discuss it further on this appeal.

                                                9
Reingold to the minimum five-year prison term mandated by 18 U.S.C. § 2252(b)(1) for any

distribution of child pornography. It submits that the district court erred as a matter of law

in holding that the application of that mandated minimum sentence to Reingold would violate

the Eighth Amendment. We review de novo a district court’s “[c]onclusions of law,

including those involving constitutional questions,” United States v. Fell, 531 F.3d 197, 209

(2d Cir. 2008), and here conclude that the district court erred in holding the mandatory

minimum sentence unconstitutional.



       B.     Standards Applicable to Eighth Amendment Analysis

       The Eighth Amendment states that “[e]xcessive bail shall not be required, nor

excessive fines imposed, nor cruel and unusual punishments inflicted.” U.S. Const. amend.

VIII. In identifying cruel and unusual punishments, the Supreme Court has not limited itself

to “historical conceptions” of impermissible sanctions, Graham v. Florida, 130 S. Ct. 2011,

2021 (2010), but has looked to “‘the evolving standards of decency that mark the progress

of a maturing society,’” Kennedy v. Louisiana, 554 U.S. 407, 419 (2008) (quoting Trop v.

Dulles, 356 U.S. 86, 101 (1958) (plurality opinion)). A punishment will be deemed “cruel

and unusual” not only when it is “inherently barbaric,” but also when it is “disproportionate

to the crime.” Graham v. Florida, 130 S. Ct. at 2021; see Harmelin v. Michigan, 501 U.S.

957, 997–98 (1991) (Kennedy, J., concurring in part and concurring in the judgment) (tracing

history of proportionality principle).11


       11
          In Graham, the Supreme Court recognized Justice Kennedy’s concurring opinion
in Harmelin, joined in by Justices O’Connor and Souter, as “controlling” in its discussion of
constitutional proportionality. Graham v. Florida, 130 S. Ct. at 2022; see also Marks v.

                                             10
              1.      General Principles of Constitutional Proportionality

       This appeal focuses on the proportionality aspect of Eighth Amendment jurisprudence.

The Supreme Court first interpreted the Eighth Amendment to prohibit “‘greatly

disproportioned’” sentences in United States v. Weems, 217 U.S. 349, 371 (1910) (quoting

O’Neil v. Vermont, 144 U.S. 323, 340 (1892) (Field, J., dissenting)). Since then, the Court

has emphasized that constitutional proportionality is a “narrow” principle in that it “does not

require strict proportionality,” and it “forbids only extreme sentences that are ‘grossly

disproportionate’ to the crime.” Harmelin v. Michigan, 501 U.S. at 997, 1001 (Kennedy, J.,

concurring) (quoting Solem v. Helm, 463 U.S. 277, 288 (1983)); accord Graham v. Florida,

130 S. Ct. at 2021.

       A number of principles inform this narrow view of the constitutional mandate of

proportionality: (1) the “substantial deference” generally owed by reviewing courts “to the

broad authority that legislatures necessarily possess in determining the types and limits of

punishments for crimes”; (2) a recognition that the Eighth Amendment does not mandate

“any one penological theory” and that “competing theories of mandatory and discretionary

sentencing have been in varying degrees of ascendancy or decline since the beginning of the

Republic”; (3) respect for the “marked divergences both in underlying theories of sentencing

and in the length of prescribed prison terms” that “are the inevitable, often beneficial, result



United States, 430 U.S. 188, 193 (1977) (“When a fragmented court decides a case and no
single rationale explaining the result enjoys the assent of five Justices, the holding of the
Court may be viewed as that position taken by those members who concurred in the
judgments on the narrowest grounds.” (internal quotation marks omitted)).

                                              11
of the federal structure”; and (4) prudential understanding that proportionality review “should

be informed by objective factors to the maximum possible extent,” that the “most prominent

objective factor is the type of punishment imposed,” and that while the Supreme Court has

frequently referenced “the objective line between capital punishment and imprisonment for

a term of years,” it has itself acknowledged a “lack [of] clear objective standards to

distinguish between sentences for different terms of years.” Harmelin v. Michigan, 501 U.S.

at 998–1001 (Kennedy, J., concurring) (internal quotation marks omitted).

              2.     Reviewing the Proportionality of a Punishment in a Particular Case

       The Supreme Court’s proportionality cases fall into two classifications. “The first

involves challenges to the length of term-of-years sentences given all the circumstances in

a particular case.” Graham v. Florida, 130 S. Ct. at 2021 (emphasis added). In making a

case-particular assessment of proportionality, the Court has employed a two-step analysis,

first “comparing the gravity of the offense and the severity of the sentence.” Id. at 2022.

Given the principles already discussed, the Court has observed that it will be “‘the rare case

in which this threshold comparison . . . leads to an inference of gross disproportionality.’”

Id. (quoting Harmelin v. Michigan, 501 U.S. at 1005 (Kennedy, J., concurring) (first

alteration in Graham omitted)). Should such an inference arise, however, the second step of

the analysis requires a court to “compare the defendant’s sentence with the sentences

received by other offenders in the same jurisdiction and with the sentences imposed for the

same crime in other jurisdictions.” Id. Only “[i]f this comparative analysis ‘validate[s] an

initial judgment that [the] sentence is grossly disproportionate’” will the sentence be deemed

                                              12
“cruel and unusual.” Id. (quoting Harmelin v. Michigan, 501 U.S. at 1005 (Kennedy, J.,

concurring) (alterations in original)).

       In this case-particular review, the Supreme Court has thus far identified a

term-of-years sentence as grossly disproportionate on only one occasion. In Solem v. Helm,

a South Dakota court sentenced a defendant with a prior record of six non-violent felony

convictions to a non-mandatory term of life imprisonment without parole for passing a bad

check in the amount of $100. See 463 U.S. at 279, 281–82. The Supreme Court drew a

threshold inference of gross disproportionality from the fact that the crime of conviction was

“one of the most passive felonies a person could commit,” involving “neither violence nor

threat of violence to any person,” id. at 296 (internal quotation marks omitted), while the

punishment was “the most severe” non-capital sentence “that the State could have imposed

on any criminal for any crime,” id. at 297. That inference of disproportionality was then

validated by the fact that “Helm was treated more severely than he would have been in any

other State.” Id. at 300.

       Since Solem, the Supreme Court has consistently rejected proportionality challenges

to prison sentences in particular cases. In Harmelin v. Michigan, the Court upheld a

statutorily mandated term of life imprisonment without parole in the Michigan case of a

recidivist defendant convicted of possessing 672 grams of cocaine. See 501 U.S. at 1009

(Kennedy, J., concurring).        Declining to draw a threshold inference of gross

disproportionality, Justice Kennedy observed that Harmelin’s crime was distinguishable from

the “relatively minor, nonviolent crime at issue in Solem,” because the “[p]ossession, use,

                                             13
and distribution of illegal drugs represent one of the greatest problems affecting the health

and welfare of our population.” Id. at 1002 (internal quotation marks omitted) (recognizing

range of criminal activity associated with drug possession). In such circumstances, “the

Michigan Legislature could with reason conclude that the threat posed to the individual and

society by possession of this large an amount of cocaine—in terms of violence, crime, and

social displacement—is momentous enough to warrant the deterrence and retribution of a life

sentence without parole.” Id. at 1003.

       Thereafter, in Ewing v. California, 538 U.S. 11 (2003), the Supreme Court rejected

a proportionality challenge to a prison sentence of 25 years to life imposed pursuant to

California’s Three Strikes Law on a recidivist felon convicted of stealing $1,200 worth of

golf clubs, see id. at 16–18 (plurality) (referencing Cal. Penal Code Ann. § 667(e)(2)(A)).

Declining to draw an inference of gross disproportionality, the Court plurality reasoned that

defendant’s grand theft felony was not one of the most passive crimes a person could

commit, that the California legislature “made a judgment that protecting the public safety

requires incapacitating criminals who have already been convicted of at least one serious or

violent crime[, and that n]othing in the Eighth Amendment prohibits California from making

that choice.” Id. at 25, 28; see Lockyer v. Andrade, 538 U.S. 63, 77 (2003) (rejecting

prisoner’s Eighth Amendment habeas challenge to sentence of 25 years to life under

California’s Three Strikes law for stealing approximately $150 worth of videotapes).

       As these cases make plain, at the same time that the Eighth Amendment prohibits

grossly disproportionate sentences, it is rare that a sentence falling within a legislatively

                                             14
prescribed term of years will be deemed grossly disproportionate. See Harmelin v.

Michigan, 501 U.S. at 1001 (Kennedy, J., concurring) (noting that “outside the context of

capital punishment, successful challenges to the proportionality of particular sentences are

exceedingly rare” (alterations and internal quotation marks omitted; emphasis in original));

accord United States v. Polk, 546 F.3d 74, 76 (1st Cir. 2008) (observing that “instances of

gross disproportionality” are “hen’s-teeth rare”).

              3.     Ensuring Proportionality Through Categorical Rules

       “The second classification of [proportionality] cases has used categorical rules to

define Eighth Amendment standards.” Graham v. Florida, 130 S. Ct. at 2022. Until Graham,

such categorical pronouncements were made with respect to a single punishment—the death

penalty—and fell into “two subsets, one considering the nature of the offense” for which

death was ordered, “the other considering the characteristics of the offender” sentenced to

death. Id. Thus, the Supreme Court has categorically prohibited death sentences for

“nonhomicide crimes against individuals,” id., such as rape, see Kennedy v. Louisiana, 554

U.S. at 413, or felony murder where the defendant participated in the felony but did not kill

or intend to kill anyone, see Enmund v. Florida, 458 U.S. 782, 801 (1982). The Court has

also categorically prohibited death sentences for juvenile defendants, see Roper v. Simmons,

543 U.S. 551, 578 (2005), and persons who are mentally retarded, see Atkins v. Virginia, 536

U.S. 304, 321 (2002).

       In identifying types of crimes or types of defendants for whom capital punishment is

categorically disproportionate, the Supreme Court has prescribed a two-step analysis. It

                                             15
“first considers objective indicia of society’s standards, as expressed in legislative

enactments and state practice to determine whether there is a national consensus against the

sentencing practice at issue.” Graham v. Florida, 130 S. Ct. at 2022 (internal quotation

marks omitted). But because “[c]ommunity consensus, while entitled to great weight, is not

itself determinative of whether a punishment is cruel and unusual,” it then proceeds to a

second step. Id. at 2026 (internal quotation marks omitted). “[G]uided by the standards

elaborated by controlling precedents and by the Court’s own understanding and interpretation

of the Eighth Amendment’s text, history, meaning, and purpose, the Court must determine

in the exercise of its own independent judgment whether the punishment in question violates

the Constitution.” Id. at 2022 (internal quotation marks omitted). In this inquiry, a court

properly considers “the culpability of the [class of] offenders at issue in light of their crimes

and characteristics, along with the severity of the punishment in question.” Id. at 2026. It

“also considers whether the challenged sentencing practice serves legitimate penological

goals.” Id.

       In Graham v. Florida, the Supreme Court for the first time applied this analysis to

pronounce a categorical rule for a non-capital sentencing practice: the imposition of life

imprisonment without parole on juvenile offenders for nonhomicide crimes. The Court

concluded that just as the Eighth Amendment categorically prohibits capital punishment for

juvenile offenders, so too does it categorically prohibit life without parole for those same

offenders when they stand convicted of nonhomicide crimes. See 130 S. Ct. at 2030. In



                                               16
reaching this conclusion, the Court identified a kinship between sentences of death and of

life imprisonment without parole that warranted certain categorical rules to ensure

proportionality. See id. at 2027, 2033 (observing that although “[t]he State does not execute

the offender sentenced to life without parole,” “Graham’s sentence guarantees he will die in

prison”). Nevertheless, the Court did not construe the Eighth Amendment to require that

juvenile defendants be released at some time during their natural life. See id. at 2030 (“A

State is not required to guarantee eventual freedom to a juvenile offender convicted of a

nonhomicide crime.”). It required only that juveniles be given “some meaningful opportunity

to obtain release based on demonstrated maturity and rehabilitation.” Id.

       Last term, the Court pronounced another categorical rule for a sentence of life without

parole, barring its mandatory application to juvenile offenders convicted of homicide crimes.

See Miller v. Alabama, 132 S. Ct. 2455 (2012). Here, the Supreme Court identified no

categorical constitutional requirement that juveniles sentenced to life imprisonment for

murder be afforded some opportunity for release. It ruled only that life without parole for

such juvenile offenders could not be mandatory and had to reflect an individualized

sentencing determination. See id. at 2460.

       In reaching this conclusion, the Court not only reiterated the analogy Graham drew

between a death sentence and life without parole, but also clarified that the kinship between

these two harshest possible sentences explained Graham’s pronouncement of a categorical

rule “in a way unprecedented for a term of imprisonment.” Id. at 2466. Relying on that



                                             17
kinship, and on precedent categorically barring both capital punishment for juveniles and

mandatory capital punishment for adults, Miller held that the Eighth Amendment’s “principle

of proportionality” categorically prohibited mandatory life without parole for juveniles. Id.

at 2475.    Thus, “a judge or jury must have the opportunity to consider mitigating

circumstances before imposing the harshest possible penalty for juveniles.” Id.

       C.     Proportionality Review of the Mandatory Five-Year Minimum Sentence as
              Applied to Reingold

              1.     The District Court’s Mistaken Reliance on “Categorical Rule” Analysis
                     To Assess the Proportionality of a Mandatory Five-Year Sentence in
                     This Particular Case

       The district court appears to have construed Graham to invite categorical rule analysis

of any term-of-years sentence, including the mandatory five-year sentence at issue here. See

United States v. C.R., 792 F. Supp. 2d at 507. This misconstrues Graham.

       First, as Miller recognized, Graham’s “unprecedented” imposition of a categorical ban

outside the context of capital sentencing derives from the Court’s recognition that life

without parole for juveniles was “akin to the death penalty.” Miller v. Alabama, 132 S. Ct.

at 2466. Nothing in Graham or Miller suggests that a five-year prison term is the sort of

inherently harsh sentence that—like the death penalty or its deferred equivalent, life

imprisonment without parole—requires categorical rules to ensure constitutional

proportionality as applied to particular felony crimes or classes of defendants. Certainly, a

five-year sentence does not deprive a defendant of all hope of release, the only categorical

limitation the Supreme Court thought constitutionally necessary for mandatory life sentences


                                             18
imposed on juvenile defendants imprisoned for nonhomicide crimes. See Graham v. Florida,

130 S. Ct. at 2030. Much less does a five-year sentence equate to one of “the law’s most

serious punishments” so as to raise the constitutional concerns identified in Miller v.

Alabama about the mandatory application of life without parole to all juveniles. 132 S. Ct.

at 2467, 2471; see also Harmelin v. Michigan, 501 U.S. at 995 (“[A] sentence which is not

otherwise cruel and unusual” does not “become[] so simply because it is mandatory.”

(internal quotation marks omitted)). Accordingly, a mandatory minimum five-year sentence

is not the sort of sentencing practice that the Supreme Court has ever signaled requires

categorical rules to ensure constitutional proportionality.

       Second, insofar as the district court purported to identify a consensus against five-year

prison terms for juveniles convicted of child pornography crimes, we are by no means

persuaded by its analysis. We need not discuss the point, however, because any such

consensus is not relevant here. Reingold was already 19 when he committed the crime of

conviction. In short, he was an adult, not a juvenile. The district court tries to blur the

distinction between juvenile and adult offenders by finding that, “at the time of the crime,”

Reingold was “a developmentally immature young adult.” United States v. C.R., 792

F. Supp. 2d at 506.12 Even if we accept this assessment, however, it hardly supports

categorical rule analysis in this case. Nowhere does the record reveal any consensus about


       12
           Reingold’s “immaturity” did not have its origins in any organic brain damage or
cognitive limitations. To the contrary, at least one doctor who interviewed Reingold found
that his “level of intellectual functioning is in the high-average range.” United States v. C.R.,
792 F. Supp. 2d at 412 (internal quotation marks omitted).

                                               19
how immature adults should be sentenced for child pornography crimes. Moreover,

immaturity, unlike age, is a subjective criterion, ill suited to the pronouncement of

categorical rules. See generally Harmelin v. Michigan, 501 U.S. at 1000 (Kennedy, J.,

concurring) (emphasizing that proportionality review “should be informed by objective

factors to the maximum possible extent” (internal quotation marks omitted)). The Supreme

Court recognized as much when, in “[d]rawing the line at 18 years of age” for death

eligibility in Roper v. Simmons, it acknowledged that “[t]he qualities that distinguish

juveniles from adults do not disappear when an individual turns 18.” 543 U.S. at 574.

Nevertheless, “a line must be drawn” to pronounce a categorical rule, and because “[t]he age

of 18 is the point where society draws the line for many purposes between childhood and

adulthood,” the Court used that age to distinguish the class of offenders that categorically

could not be sentenced to death from others to whom no such categorical prohibition would

apply. Id. This is not to suggest that an adult defendant’s immaturity is irrelevant to

sentencing. To the contrary, that circumstance is appropriately considered by a judge in

making a case-specific choice of sentence within a statutorily prescribed range. See

generally 18 U.S.C. §§ 3553(a), 3661. We here conclude only that the district court could

not substitute the defendant’s relative immaturity for the actual age of minority in applying

categorical-rule analysis to the mandated five-year minimum sentence at issue.

       Third, the district court did not, in any event, employ Graham’s analytic approach to

pronounce a categorical rule. Rather, it employed such analysis to find a five-year minimum



                                             20
sentence “disproportionate to the offense” of conviction “as applied to this defendant.”

United States v. C.R., 792 F. Supp. 2d at 510 (emphasis added and internal quotation marks

omitted). The Supreme Court’s proportionality jurisprudence does not support such a

substitution of Graham’s categorical-rule approach for Harmelin’s particular-case approach

to assess the proportionality of an otherwise permissible term-of-years sentence as applied

to a particular case. As the Court explained in Graham, where the proportionality of a term-

of-years sentence is challenged as applied to a particular defendant convicted for a specific

crime, the proper analytic approach is that employed in Harmelin and Ewing, which requires

“a threshold comparison between the severity of the penalty and the gravity of the crime.”

Graham v. Florida, 130 S. Ct. at 2023. It is where a “type of sentence” is challenged “as it

applies to an entire class of offenders who have committed a range of crimes” that such “a

threshold comparison . . . does not advance the analysis” and “the categorical approach” is

properly employed. Id. at 2022–23. Thus, in Graham, a categorical approach was required

to assess a proportionality challenge to a sentence of life imprisonment without parole as

applied to the class of persons under the age of 18 convicted of a range of nonhomicide

crimes. By contrast, here, a mandatory minimum sentence of five years is challenged as

applied to Reingold because of his particular immaturity and the circumstances under which

he distributed child pornography. That proportionality inquiry is properly conducted by

reference to Harmelin’s case-specific rather than Graham’s categorical-rule analysis.




                                             21
       When we conduct particular-case analysis here, as we do in the next section of this

opinion, we conclude that the statutorily mandated five-year minimum sentence does not

constitute cruel and unusual punishment as applied to Reingold.13

              2.     The Mandatory Five-Year Minimum Sentence Is Not Grossly
                     Disportionate as Applied to Reingold

       In reviewing the proportionality of a challenged sentence as applied to a particular

case, a court must first consider whether the “gravity of the offense and the severity of the

sentence” give rise to an “inference of gross disproportionality.” Graham v. Florida, 130 S.

Ct. at 2022 (internal quotation marks omitted). The district court failed to make this

comparative assessment. We do so here and conclude that the comparison supports no

inference of gross disproportionality in applying the minimum five-year sentence mandated

by 18 U.S.C. § 2252(b)(1) to Reingold.

                     a.     The Gravity of the Offense

       Starting with the gravity of the offense at issue, there can be no question that the

dissemination of child pornography is a serious crime that causes real injury to particularly

vulnerable victims. As Congress, courts, and scholars all recognize, child pornography

crimes at their core demand the sexual exploitation and abuse of children. Not only are

children seriously harmed—physically, emotionally, and mentally—in the process of


       13
          In doing so, we make no categorical pronouncement that a prescribed five-year
mandatory minimum sentence can never run afoul of the Eighth Amendment’s guarantee of
proportionality in noncapital criminal sentencing. We therefore leave open the possibility
that the Eighth Amendment may preclude a congressionally-mandated five-year minimum
sentence for much less serious conduct.

                                             22
producing such pornography, but that harm is then exacerbated by the circulation, often for

years after the fact, of a graphic record of the child’s exploitation and abuse. See New York

v. Ferber, 458 U.S. 747, 757–59 & nn.9–10 (1982) (citing congressional and scholarly

reports, and court cases).

       The circumstances of this case do not mitigate the general severity of such criminal

conduct.14 The pornography that is the subject of Reingold’s distribution count of conviction

is a video depicting a female child, approximately eight years old, unclothed, as an adult

male penetrates her mouth with his erect penis and then places his mouth on her vagina. It

is not necessary for us to detail similar depictions of the sexual exploitation of children in the

materials that Reingold designated for sharing with—i.e., distribution to—other GigaTribe

users, to confirm the seriousness of the criminal conduct at issue.

       Nor can any mitigation be located in the fact that Reingold’s crimes were facilitated

by a recent “digital revolution” that has “enormously increased the ways that child

pornography can be created, accessed, and distributed.” United States v. C.R., 792 F. Supp.

2d at 367. The ease with which a person can access and distribute child pornography from

his home—often with no more effort than a few clicks on a computer—may make it easier

for perpetrators to delude themselves that their conduct is not deviant or harmful. But

technological advances that facilitate child pornography crimes no more mitigate the real



       14
           It is necessary to discuss these case-specific circumstances to explain why the
district court’s characterization of them as mitigating is not persuasive and, therefore, does
not permit a conclusion favorable to Reingold at the first step of proportionality analysis.

                                               23
harm caused by these crimes than do technological advances making it easier to perpetrate

fraud, traffic drugs, or even engage in acts of terrorism—all at a distance from

victims—mitigate those crimes. If anything, the noted digital revolution may actually

aggravate child pornography crimes insofar as an expanding market for child pornography

fuels greater demand for perverse sexual depictions of children, making it more difficult for

authorities to prevent their sexual exploitation and abuse. See generally United States v.

Lewis, 605 F.3d 395, 403 (6th Cir. 2010) (noting that distribution through computers “is

particularly harmful because it can reach an almost limitless audience” (internal quotation

marks omitted) (citing H.R. Rep. No. 104-90, at 3–4 (1995), reprinted in 1995 U.S.C.C.A.N.

759, 760–61)). But precisely because the prevention of such exploitation and abuse is “a

government objective of surpassing importance,” New York v. Ferber, 458 U.S. at 757; see

id. at 756–57 (“It is evident beyond the need for elaboration that a State’s interest in

safeguarding the physical and psychological well-being of a minor is compelling.” (internal

quotation marks omitted)), we cannot view the distribution of child pornography, however

accomplished, as anything but a serious crime that threatens real, and frequently violent,

harm to vulnerable victims, cf. Harmelin v. Michigan, 501 U.S. at 1002–03 (Kennedy, J.,

concurring) (observing that characterization of drug possession with intent to distribute as

“nonviolent and victimless” crime “is false to the point of absurdity” given “pernicious

effects” of drug use).




                                             24
        No different conclusion is warranted because Reingold professed a principal interest

in receiving rather than distributing child pornography. See United States v. C.R., 792

F. Supp. 2d at 354. Reingold acknowledged that when he joined GigaTribe he knew that in

order to secure child pornography from others, he would have to share child pornography

with them in return. In short, Reingold understood from the start that, in this barter-like

market, distribution was integral to receipt. To the extent such arrangements only expand

the market in which child pornography is disseminated, Reingold’s interest in augmenting

his own collection of child pornography does not render his distribution of such pornography

any less serious a crime.

       Nor is Reingold’s crime mitigated by the fact that, once he established his GigaTribe

share folder, users on the same “closed network of buddies,” id. at 352 (internal quotation

marks omitted), could access its content without further action by Reingold. Reingold was

obliged in the first instance to create a share folder and had to designate materials to be

included therein. The materials he elected to share were child pornography, and among the

child pornography he designated for sharing was the described video depicting the sexual

exploitation of an eight-year-old girl. From the totality of affirmative actions that Reingold

took to allow others to gain access to his share file, we cannot conclude that his was among

the “most passive” felony crimes. Solem v. Helm, 463 U.S. at 296 (internal quotation marks

omitted). Nor, for reasons already discussed, can we conclude that the distribution of child

pornography is a victimless crime or one posing no threat of violence or physical harm. Cf.



                                             25
id. (noting that passing bad check posed no threat of violence); Harmelin v. Michigan, 501

U.S. at 1002 (Kennedy, J., concurring) (declining to view drug possession with intent to

distribute as “nonviolent and victimless” crime).

       Such a conclusion seems particularly unwarranted here, where Reingold admitted that

in addition to viewing and distributing child pornography, he repeatedly engaged his

pre-pubescent sister in sexual activity. Indeed, his last reported sexual interaction with the

child, when he was 18 and she was 11, was disturbingly similar to the conduct depicted on

the video that is the subject of the distribution count of conviction. The district court

concluded that Reingold’s sexual conduct with his sister was mitigated by the lack of adequate

parental supervision, Reingold’s minority during the first two encounters, and his continued

immaturity as an adult. See United States v. C.R., 792 F. Supp. 2d at 511; May 16, 2011

Sentencing Tr. 15:24–16:1. Even if correct, such excuses cannot transform the admitted three

encounters into something benign, or deny their scarring effect on the girl. Much less do these

excuses mitigate the exacerbating harm caused to children by Reingold’s distribution of

pornography in which they are depicted.

       For all these reasons, the distribution crime of conviction is appropriately viewed as

a serious offense.

                     b.     The Severity of the Sentence at Issue

       With the gravity of Reingold’s offense thus weighing heavily in the balance, we

consider whether a congressionally mandated five-year minimum sentence is grossly

disproportionate to the crime. The question requires no extended discussion.

                                              26
       As has long been recognized, “it is difficult, if not impossible to halt” the sexual

exploitation and abuse of minors by pursuing only the producers of child pornography. New

York v. Ferber, 458 U.S. at 759–60. Thus, the Supreme Court has acknowledged that “[t]he

most expeditious if not the only practical method of law enforcement may be to dry up the

market for this material by imposing severe criminal penalties” on all persons in the

distribution chain. Id. at 760 (emphasis added). With precisely this objective in mind, see

H.R. Conf. Rep. 108-66, at *28 (2003), reprinted in 2003 U.S.C.C.A.N. 683 (quoting New

York v. Ferber, 458 U.S. at 760), Congress, in 2003, established a graduated sentencing

regime for crimes involving child pornography, with any knowing receipt or distribution of

child pornography transmitted in interstate or foreign commerce punishable by a prison term

of “not less than five years and not more than 20 years” in prison. 18 U.S.C. § 2252(b)(1).15

The question on this appeal is not whether we would ourselves have made that precise policy

decision if charged with legislative responsibility. In our judicial capacity, we conclude

simply that no inference of “gross disproportionality” can be drawn from Congress’s

enactment of a five-year minimum sentence for as serious a felony crime as the distribution

of child pornography. See Harmelin v. Michigan, 501 U.S. at 999 (Kennedy, J., concurring)


       15
         Pursuant to this graduated scheme, simple possession of child pornography carries
no mandatory minimum sentence and a possible maximum of “not more than 10 years.” 18
U.S.C. § 2252(b)(2). Meanwhile, the production of child pornography in interstate
commerce or the publication of an “advertisement seeking or offering . . . to receive,
exchange, buy, produce, display, distribute, or reproduce” such child pornography is
punishable by a prison term of “not less than 15 years nor more than 30 years.” Id.
§ 2251(d), (e). The penalties for each of these proscribed activities are increased for
defendants with prior child pornography convictions. See id. §§ 2251(e), 2252(b)(1)–(2).

                                             27
(emphasizing “substantial deference” that reviewing courts owe legislature’s “broad

authority . . . in determining the types and limits of punishments for crimes” (internal

quotation marks omitted)).

       In making that determination, we need not look beyond the depicted sexual

exploitation of an eight-year old on the distributed video to conclude that the crime of

conviction here is a more serious offense than the golf club and videotape thefts in Ewing and

Lockyer, for which the Supreme Court upheld prison sentences of 25 years to life. To be sure,

those sentences were informed by the defendants’ prior criminal records. Nevertheless, a

large number of federal felony crimes carry the possibility of five-year prison terms for first

time offenders.16 In such circumstances, we can hardly infer gross disproportionality from

Congress’s decision to apply such a punishment to a felony crime presenting the serious

harms associated with the distribution of child pornography.



        16
           See, e.g., 18 U.S.C. § 81 (providing for sentence up to 25 years for arson); id.
§ 115(b)(1)(B)(ii)–(iv) (providing for sentence up to 10 years for physical assault on federal
official, with possible higher sentences depending on degree of injury); id. § 201 (providing
for sentence up to 15 years for bribery); id. § 371 (providing for sentence up to five years for
conspiracy); id. § 471 (providing for sentence up to 20 years for forgery of United States
securities); id. § 545 (providing for sentence up to 20 years for smuggling); id. § 659
(providing for sentence up to 10 years for theft of goods in interstate commerce); id. § 892
(providing for sentence up to 20 years for making an extortionate extension of credit); id.
§ 924(c)(1) (providing for mandatory consecutive sentence of five years for carrying firearm
during crime of violence or drug trafficking, with possible enhancements for how gun was
used, type of firearm, and criminal record); id. § 1001 (providing for sentence up to five
years for making false statement to federal official); id. § 1341 (providing for sentence up
to 20 years for mail fraud); id. § 1542 (providing for sentence up to 10 years for passport
fraud); id. § 1621 (providing for sentence up to five years for perjury); id. § 1956 (providing
for sentence up to 20 years for money laundering).

                                              28
       No different conclusion is warranted because Congress mandated a minimum five-year

sentence rather than leaving the possibility of such a punishment to the discretion of the

sentencing judge. As the Supreme Court observed in Harmelin v. Michigan, the legislature’s

“‘power to define criminal punishments without giving the courts any sentencing discretion’”

is “beyond question.” 501 U.S. at 1006 (Kennedy, J., concurring) (quoting Chapman v.

United States, 500 U.S. 453, 467 (1991)); see id. at 999 (recognizing that “competing theories

of mandatory and discretionary sentencing have been in varying degrees of ascendancy or

decline since the beginning of the Republic”). Precisely because statutorily mandated

sentences represent not the judgment of a single judge but “the collective wisdom of

the . . . Legislature and, as a consequence, the . . . citizenry,” in Harmelin the Court accorded

great deference to a state legislature’s policy decision to mandate life sentences for persons

who possessed more than 650 grams (approximately a pound and a half) of cocaine. Id. at

1006. Indeed, the Court there noted that it had “never invalidated a penalty mandated by a

legislature based only on the length of sentence, and, especially with a crime as severe as

[drug possession], we should do so only in the most extreme circumstance.” Id.

       This case does not present that extreme circumstance. The crime here at issue is as

harmful as that in Harmelin, while the challenged five-year minimum is far less “severe and

unforgiving” than the life sentence upheld in that case. Id. at 1008. Indeed, here Congress

did not mandate a single sentence for all persons who distribute child pornography, nor set

a maximum sentence that was the harshest term of incarceration permitted by law. See

generally Miller v. Alabama, 132 S. Ct. at 2467–68. Rather, it provided a sentencing range


                                               29
of “not less than 5 years and not more than 20 years” for the distribution of child pornography.

18 U.S.C. § 2252(b)(1). To the extent every sentence is a function of both the crime

committed and the character of the defendant who committed it, Congress decided only that

the distribution of child pornography was a sufficiently serious crime as to require at least a

five-year sentence even for the most sympathetic defendant. But having set this floor,

Congress then left it entirely to district courts to assess the particulars of the crime and the

character of the defendant to determine whether some other sentence, between the five-year

minimum and twenty-year maximum, might be warranted to serve the interests of justice. In

this respect it afforded more “mechanisms for consideration of individual circumstances” in

child pornography distribution cases than were available for drug trafficking in Harmelin.

Harmelin v. Michigan, 501 U.S. at 1008 (Kennedy, J., concurring); see id. (noting that

“[p]rosecutorial discretion before sentence and executive or legislative clemency afterwards

provide means for the State to avert or correct unjust sentences”).

       Nor does Reingold’s immaturity give rise to an inference of gross disproportionality.

An adult defendant’s immaturity may mitigate his moral culpability, but it does not reduce the

harmful effects of his crime, which, as we have explained, are properly viewed as quite

serious in cases of distribution of child pornography. Indeed, where the sentence at issue for

such a serious crime is a minimum prison term of five years, the punishment is not so severe

as to permit us to infer gross disproportionality from Congress’s decision to mandate its

imposition on all adult defendants, without regard to their relative maturity. See generally

Miller v. Alabama, 132 S. Ct. at 2460 (prohibiting mandatory life imprisonment without


                                              30
parole only for juvenile, not adult, offenders); United States v. Merchant, No. 12-12957, 2013

WL 461218, at *1 (11th Cir. Feb. 7, 2013) (rejecting argument that 25-year-old defendant’s

lack of sophistication, limited life experience, and amenability to treatment rendered 17.5-year

sentence for distribution of large quantity of child pornography grossly disproportionate); cf.

United States v. Moore, 643 F.3d 451, 454 (6th Cir. 2011) (rejecting claim that imposition of

15-year mandatory minimum sentence on four-time felon convicted of carrying firearm was

grossly disproportionate in light of defendant’s diminished mental capacity). We nevertheless

reiterate the point we made earlier: the district court may, of course, take the defendant’s

immaturity into account in deciding where within the prescribed statutory range to sentence

Reingold. See 18 U.S.C. §§ 3553(a), 3661; see also United States v. Moore, 643 F.3d at 455

(noting district court’s consideration of defendant’s reduced mental capacity in imposing

sentence at very bottom of Guidelines range); United States v. Stern, 590 F. Supp. 2d 945, 953

(N.D. Ohio 2008) (concluding that fact that defendant began downloading child pornography

at 14 “weigh[ed] heavily in favor of a deviation [from Guidelines range] under § 3553(a)”);

cf. United States v. Wachowiak, 412 F. Supp. 2d 958, 964 (E.D. Wis. 2006) (imposing 70-

month sentence on defendant subject to mandatory minimum sentence of five years with

applicable Guidelines range of 121 to 151 months’ imprisonment in light of various mitigating

factors). But it cannot rely on Reingold’s relative immaturity to hold a five-year minimum

sentence for the distribution of child pornography to be cruel and unusual punishment.

       Our conclusion that imposition of the five-year mandatory minimum sentence in this

case does not give rise to an inference of gross disproportionality finds further support in our


                                              31
own precedent. In United States v. Ramos, 685 F.3d 120 (2d Cir. 2012), a case in which a

recidivist defendant convicted of receiving and possessing child pornography faced a 15-year

minimum sentence, we easily rejected an Eighth Amendment challenge to that higher

minimum, noting that it was well below the defendant’s Guidelines range and that “‘[l]engthy

prison sentences . . . do not violate the Eighth Amendment’s prohibition against cruel and

unusual punishment when based on proper application of the Sentencing Guidelines or

statutorily mandated . . . terms,’” id. at 134 n.11 (quoting United States v. Yousef, 327 F.3d

56, 163 (2d Cir. 2003)) (second and third alterations in Ramos).

       Our sister circuits have similarly rejected Eighth Amendment challenges to mandatory

minimum sentences in child pornography or exploitation cases. See United States v. Hart,

635 F.3d 850, 859 (6th Cir. 2011) (upholding 15-year mandatory minimum under 18 U.S.C.

§ 2251 for persuading minor to engage in sexually explicit conduct for purpose of producing

visual depictions, and noting same ruling with respect to 10-year mandatory minimum for

enticing minor into sexual relations in violation of 18 U.S.C. §§ 2422(b) and 2251); United

States v. Nagel, 559 F.3d 756, 762 (7th Cir. 2009) (holding 10-year mandatory minimum

sentence under 18 U.S.C. § 2422(b) not grossly disproportionate to crime of attempting to

entice minor to engage in criminal sexual act); United States v. Malloy, 568 F.3d 166, 180 &

n.14 (4th Cir. 2009) (upholding 15-year mandatory minimum sentence under 18 U.S.C.

§ 2251); United States v. Gross, 437 F.3d 691, 695 (7th Cir. 2006) (concluding that 15-year

mandatory minimum sentence under 18 U.S.C. § 2252A(b)(1) for distribution of child

pornography by defendant who was former victim and perpetrator of child sexual abuse was


                                             32
not grossly disproportionate to crime in light of high bar Supreme Court has set for such

claims, seriousness of crime, and defendant’s prior record); United States v. MacEwan, 445

F.3d 237, 250 (3d Cir. 2006) (rejecting gross disproportionality challenge to 15-year

minimum sentence mandated by 18 U.S.C. § 2252(a)(2)(B), (b)(1) for repeat offender

convicted of receipt of child pornography); see also United States v. Dwinells, 508 F.3d 63,

69 (1st Cir. 2007) (rejecting Eighth Amendment challenge to mandatory minimum sentence

for attempting to persuade, induce, entice, or coerce minor to engage in criminal sexual

activity in violation of 18 U.S.C. § 2242(b), noting that “it is not the proper function of the

courts to act as super-legislatures, passing judgment upon Congress’s penological

determinations”).

       In sum, the application of a mandatory five-year sentence to the distribution crime of

conviction in this particular case does not give rise to an inference of gross disproportionality

suggestive of cruel and unusual punishment. Thus, we need not engage in any sentencing

comparison to determine, as we do here, that the district court erred in concluding that the

Eighth Amendment barred the application of a five-year mandatory minimum sentence in this

case. Accordingly, we remand the case for the district court to vacate its original sentence and

to resentence Reingold consistent with the statutory mandate.

       D.     Calculation of the Applicable Guidelines Range

       The United States submits that the district court erred in failing to apply certain

Sentencing Guidelines enhancements to the calculation of Reingold’s applicable Guidelines

range. Specifically, it contends that enhancements were warranted for (1) Reingold’s


                                               33
engagement in a pattern of sexual abuse or exploitation of a minor, see U.S.S.G.

§ 2G2.2(b)(5); (2) the use of a computer to commit the crime of conviction, see id.

§ 2G2.2(b)(6); and (3) the distribution of child pornography, see id. § 2G2.2(b)(3)(F).

Reingold responds that the district court correctly declined to apply these enhancements, but

asserts that, if there was error, it was necessarily harmless because “the record is abundantly

clear that Judge Weinstein would have imposed the same sentence regardless of the

recommended guideline range.” Appellee’s Br. 43.

       Our identification of a Guidelines calculation error as “harmless” allows us to uphold

an otherwise valid sentence and to avoid vacatur and remand where it is clear that the district

court would impose the same sentence in any event. See United States v. Jass, 569 F.3d 47,

68 (2d Cir. 2009). In this case, however, we cannot avoid remand and resentencing because

we have identified a non-Guidelines sentencing error, i.e., the district court’s refusal to impose

a mandatory five-year minimum sentence based on an erroneous Eighth Amendment

determination. Thus, on remand, the district court will not be able to impose the same

sentence. We recognize that the district court may well choose on remand to impose a

non-Guidelines sentence. Nevertheless, “we have indicated that a correct Guidelines

calculation must normally precede [such a] decision.” United States v. Rodriguez, 587 F.3d

573, 584 (2d Cir. 2009). Accordingly, we proceed to consider the government’s Guidelines

calculation challenge.

       In doing so, we interpret relevant Guidelines provisions de novo, but we defer to the

district court’s findings of facts pertinent to the Guidelines absent clear error. See United

States v. Broxmeyer, 699 F.3d 265, 281 (2d Cir. 2012).

                                               34
              1.      Pattern of Abuse Enhancement

       Guideline § 2G2.2, which applies to defendants convicted of child pornography crimes

pursuant to 18 U.S.C. § 2252, provides for a five-level enhancement in offense level “[i]f the

defendant engaged in a pattern of activity involving the sexual abuse or exploitation of a

minor.” U.S.S.G. § 2G2.2(b)(5). This Guideline attempts to assess both a defendant’s risk

of recidivism and the potential harm to others that such recidivism could present. See United

States v. Laraneta, 700 F.3d 983, 987 (7th Cir. 2012) (observing that, with respect to

§ 2G2.2(b)(5), defendant’s “[o]ther acts of sexual predation . . . have predictive significance

with regard to the likelihood of recidivism, . . .[a] relevant consideration in deciding how long

a defendant should be incapacitated (by being imprisoned) from committing further crimes”).

The Probation Department initially recommended, and the government urged, that this

five-level enhancement be applied to Reingold based on his admitted three sexual contacts

with his half-sister. The district court disagreed, finding § 2G2.2(b)(5) inapplicable because

Reingold was a minor when the first two contacts with his sister occurred. Further, it

observed that the acts were attributable largely to a lack of “proper parental supervision,” and

were so lacking in temporal proximity as to appear “aberrant.” May 16, 2011 Sentencing Tr.

15:24–16:1. These circumstances do not, in fact, make § 2G2.2(b)(5) inapplicable here.

       The “pattern of activity involving the sexual abuse or exploitation of a minor” required

to warrant a § 2G2.2(b)(5) enhancement is specifically defined in the Guideline’s application

notes to mean “any combination of two or more separate instances of the sexual abuse or

sexual exploitation of a minor by the defendant, whether or not the abuse or exploitation

(A) occurred during the course of the offense; (B) involved the same minor; or (C) resulted

                                               35
in a conviction for such conduct.” U.S.S.G. § 2G2.2 cmt. n.1. The same application note

defines “sexual abuse or exploitation” to mean

       (A) conduct described in 18 U.S.C. § 2241, § 2242, § 2243, § 2251(a)–(c),
       § 2251(d)(1)(B), § 2251A, § 2260(b), § 2421, § 2422, or § 2423; (B) an
       offense under state law, that would have been an offense under any such
       section if the offense had occurred within the special maritime or territorial
       jurisdiction of the United States; or (C) an attempt or conspiracy to commit
       any of the offenses under subdivisions (A) or (B).

Id. The note also specifically excludes from the definition of “sexual abuse or exploitation”

the “possession, accessing with intent to view, receipt, or trafficking in material relating to

the sexual abuse or exploitation of a minor.” Id.

       Read together, these definitions signal that § 2G2.2(b)(5) is narrow in one respect and

expansive in another. The specifically referenced federal statutes cabin the conduct that

qualifies as “sexual abuse or exploitation” for purposes of a § 2G2.2(b)(5) enhancement. At

the same time, the expansive word “any” in the phrase “any combination of two or more

separate instances of the sexual abuse or sexual exploitation of a minor by the defendant”

signals that any conduct described within one of the specified statutes is properly considered

in making a § 2G2.2(b)(5) assessment and that nothing more than two separate instances of

such conduct is required to demonstrate the requisite pattern.

       Thus, the lack of temporal proximity in Reingold’s sexual contacts with his sister was

not a permissible ground for refusing to apply a § 2G2.2(b)(5) enhancement. See generally

United States v. Salim, 549 F.3d 67, 79 (2d Cir. 2008) (holding it legal error to impose

additional requirement beyond plain language of Guideline). In so holding, we join our sister

circuits, which have uniformly concluded that no temporal proximity among acts of sexual


                                              36
abuse or exploitation is required to satisfy the pattern requirement of § 2G2.2(b)(5). See,

e.g., United States v. Woodard, 694 F.3d 950, 953–54 (8th Cir. 2012); United States v. Clark,

685 F.3d 72, 79 (1st Cir. 2012); United States v. McGarity, 669 F.3d 1218, 1260 (11th Cir.

2012); United States v. Bacon, 646 F.3d 218, 221 (5th Cir. 2011); United States v. Olfano,

503 F.3d 240, 243 (3d Cir. 2007); United States v. Garner, 490 F.3d 739, 743 (9th Cir. 2007);

United States v. Gawthrop, 310 F.3d 405, 414 (6th Cir. 2002); United States v. Lovaas, 241

F.3d 900, 904 (7th Cir. 2001).

            Nor can § 2G2.2(b)(5) and its application notes be construed to exclude conduct

satisfying its definition of sexual abuse and exploitation from pattern consideration based on

mitigating circumstances.17 As noted, the Guideline strictly limits the activities qualifying

as sexual abuse and exploitation, but where conduct falls within that narrowly defined

sphere, “any combination of two or more instances” of such abuse or exploitation—not any

combination unexplained by mitigating circumstances—qualifies as a “pattern” warranting

an enhancement. That mitigating circumstances are not relevant to a particular Guideline’s

applicability does not, however, mean that a district court may not properly rely on such

circumstances either in deciding where within the applicable Guidelines range to sentence

a defendant or in deciding to sentence a defendant to a non-Guidelines sentence.

       17
           Even if inadequate parental supervision might somehow have contributed to
Reingold’s first sexual contact with his sister, when the 15-year-old boy and his eight-year-
old sister shared a bed on a family vacation, it is not apparent how it mitigates the second and
third contacts absent a conclusion that no responsible parent would leave a teenage boy alone
with his pre-pubescent sister, which hardly seems warranted. We need not pursue this
essentially factual question further, however, in light of our legal conclusion that the
language of § 2G2.2(b)(5) provides for any conduct satisfying its limited definition of sexual
abuse and exploitation to be considered, with any two separate instances of such conduct
satisfying the pattern requirement for an enhancement.

                                              37
       We further conclude that the district court erred in excluding from § 2G2.2(b)(5)

consideration of Reingold’s first two sexual contacts with his half-sister on the ground that

defendant was then himself a minor. This court has not previously had occasion to consider

whether acts of sexual abuse or exploitation of a minor by a minor can support a

§ 2G2.2(b)(5) enhancement.        We have however, considered that question in similar

circumstances and held that they can. See United States v. Phillips, 431 F.3d 86, 90–93 (2d

Cir. 2005).

       In Phillips, a defendant convicted of sexually exploiting a minor in violation of 18

U.S.C. § 2251(a) and (b) argued that the “§ 4B1.5(b) enhancement for a pattern of prohibited

sexual behavior does not apply to unadjudicated conduct perpetrated by an adolescent

because neither the Guidelines nor the Application Notes explicitly say that it does.” Id. at

90. In rejecting this argument, we noted that one of the statutes defining conduct supporting

the enhancement, 18 U.S.C. § 2243,18 does not “limit[] its coverage to violators over the age

of eighteen,” thus making “sexual abuse of a minor by a minor . . . prohibited conduct

constituting an offense under federal law.” Id. at 91. We further observed that, by contrast

to other Guidelines, which condition enhancements on whether relevant offenses were adult

       18
            18 U.S.C. § 2243 makes it a felony for any person:

       in the special maritime and territorial jurisdiction of the United States or in a
       Federal prison, . . . knowingly [to] engage[] in a sexual act with another person
       who–
       (1) has attained the age of 12 years but has not attained the age of 16 years;
       and
       (2) is at least four years younger than the person so engaging;
       or attempts to do so. . . .

       Id. § 2243(a).

                                              38
convictions, § 4B1.5(b) contained no comparable language “placing constraints on the use

of a conviction based on the defendant’s age.” Id. at 93; see U.S.S.G. §§ 4A1.1, 4B1.1.

Accordingly, we concluded that, under § 4B1.5(b), “the district court [was] permitted to take

into account sexually exploitive conduct that occurred when the defendant was himself a

juvenile.” United States v. Phillips, 431 F.3d at 93.

         The same reasoning applies to § 2G2.2(b)(5). Among the statutes whose conduct

describes the sexual abuse or exploitation of a minor relevant to this Guideline is 18 U.S.C.

§ 2241(c), which makes it a crime knowingly to engage “in a sexual act with another person

who has not attained the age of 12” within the jurisdiction of the United States. Like § 2243,

§ 2241(c) does not limit its coverage to offenders over the age of 18. Nor does any language

in § 2G2.2(b)(5) or its application notes require consideration of a defendant’s age at the time

of past instances of sexual abuse or exploitation. In the absence of such language, and

consistent with our decision in Phillips, we here conclude that sexual abuse or exploitation

of a minor undertaken by a defendant who was a juvenile at the time of the incident is

properly considered in applying the § 2G2.2(b)(5) pattern enhancement. The two of our

sister circuits to have considered this question have reached the same conclusion. See United

States v. Woodard, 694 F.3d at 953 [8th Cir.]; United States v. Olfano, 503 F.3d at 243 [3d

Cir.].

         We therefore conclude that the district court erred in relying on Reingold’s minority,

lack of temporal proximity, and inadequate supervision as grounds not to consider his

contacts with his sister as a basis for a § 2G2.2(b)(5) enhancement in this case. In rejecting

these grounds for decision, we do not, however, conclude that Reingold warrants a

                                               39
§ 2G2.2(b)(5) enhancement. That depends on whether his sexual contacts with his sister

qualify as “sexual abuse or exploitation,” a factual finding that the district court never made.

       As we have already observed, “sexual abuse or exploitation,” as used in

§ 2G2.2(b)(5), means only such conduct as is described in certain criminal statutes. The

definition of a “sexual act” for purposes of § 2241(c), which appears to be the relevant statute

here, derives from 18 U.S.C. § 2246(2)(D), which defines the phrase to mean, inter alia, “the

intentional touching, not through the clothing, of the genitalia of another person who has not

attained the age of 16 years with an intent to abuse, humiliate, harass, degrade, or arouse or

gratify the sexual desire of any person.”

       Of Reingold’s three sexual contacts with his sister, the last—when he was 18 and she

was 11—appears plainly to qualify. Reingold admitted that on that occasion, he had his

sister “manually stimulate his penis, while he rubbed her breasts and manually stimulated her

vagina, both over and under her panties,” PSR ¶ 11, and “coached her on how to perform oral

sex on him” and performed oral sex on her, id. ¶ 13. The siblings’ first encounter might also

qualify in that Reingold admitted that on that first occasion, when he was 15 and his sister

eight, he had her sister manually stimulate his penis while he touched the girl’s “privates,

under her clothing.” Id. Less clear is whether the second encounter qualifies as a sexual act.

On that occasion, when Reingold was 16 and his sister nine, he again had his sister manually

stimulate his penis, but Reingold admitted rubbing her vagina only over her underpants. We

leave it to the district court to resolve these open factual questions as to which of Reingold’s

contacts involved “a sexual act.”




                                              40
       If, however, the facts show that on two or more occasions Reingold engaged his sister,

a girl then younger than twelve, in sexual acts as defined by federal law, those two separate

instances of sexual abuse or exploitation would warrant a five-level enhancement to his

Guidelines offense level calculation pursuant to U.S.S.G. § 2G2.2(b)(5).

              2.     Use of a Computer Enhancement

       Guideline § 2G2.2(b)(6) provides for a two-level enhancement “[i]f the offense

involved the use of a computer.” The district court declined to apply the enhancement in this

case, finding it to constitute impermissible “double counting.” United States v. C.R., 792

F. Supp. 2d at 512. That conclusion was unwarranted in light of United States v. Johnson,

221 F.3d 83, 99 (2d Cir. 2000), in which we specifically rejected a double-counting challenge

to the application of a § 2G2.2(b)(6) enhancement. As Johnson observed, the use of a

computer is not essential to the act of distributing child pornography. A person “can traffic

in child pornography without using a computer much like one could commit a robbery

without the use of a gun.” Id. (internal quotation marks omitted). Thus, the enhancement

does not result in double counting because it does not “increase a defendant’s sentence to

reflect the kind of harm that has already been fully accounted for” by the base offense level.

United States v. Volpe, 224 F.3d 72, 76 (2d Cir. 2000) (internal quotation marks omitted).

       This conclusion is reinforced by our earlier observation that the digital revolution,

which may be responsible for more child pornography crimes’ being committed by computer,

has aggravated rather than mitigated the harms associated with such crime. See supra at Part

II.C.2.a. By making it easier to retrieve and distribute child pornography, computers have

expanded the market for child pornography, which in turn fuels a greater demand for a

                                             41
product that can only be produced by abusing and exploiting children. See generally United

States v. Lewis, 605 F.3d at 403. Moreover, once child pornography is circulated by

computer, it becomes almost impossible to remove or destroy. In such circumstances, it was

hardly unreasonable, much less double counting, for the Sentencing Commission to conclude

that the base offense level applicable to all distributors of child pornography—even those

who share items non-electronically—should be enhanced for persons who commit the crime

by using a computer.

       Reingold submits that since Johnson this court has expressed reservations about the

§ 2G2.2(b)(6) enhancement because, now that so many child pornography crimes are

committed by computer, the enhancement applies “in virtually every case” so as to have “the

flavor” of double counting. United States v. Tutty, 612 F.3d 128, 132 (2d Cir. 2010); see

United States v. Dorvee, 616 F.3d 174, 186 (2d Cir. 2010).19 In neither case, however, did

we reverse Johnson or hold that it would be impermissible double counting to apply a

§ 2G2.2(b)(6) enhancement when the distribution of child pornography is effected by

computer.   Rather, the noted reservations informed the observation that substantive

reasonableness concerns could arise where courts imposed sentences near the statutory

maximum as a result of Guidelines enhancements that now seemed to apply “in virtually

every case.” United States v. Tutty, 612 F.3d at 132.

       Here, we do not review the substantive reasonableness of a sentence at the top of the


       19
          Neither case had occasion to consider whether the reason so many of the same
enhancements apply in the child pornography cases we review is that the government,
confronting an epidemic of such crimes with limited resources, has focused its prosecutorial
efforts on those cases presenting these aggravating factors.

                                            42
statutory range. We consider only whether the district court erred in concluding that it would

be impermissible double counting to apply a computer use enhancement to the calculation

of Reingold’s Guidelines. In light of Johnson, we conclude that the district court did so err.

On remand, the district court should apply this enhancement to its calculation of Reingold’s

recommended Guidelines range.

              3.     Distribution Enhancement

       In calculating Reingold’s Guidelines range, the district court further declined to apply

the two-level enhancement for distribution provided in U.S.S.G. § 2G2.2(b)(3)(F). The

district court found that the base offense level for § 2G2.2(a)(2) already accounted for the

harms attributable to distribution, making any enhancement “a form of double counting.”

May 16, 2011 Sentencing Tr. 13:8–10. Moreover, it found that Reingold’s primary objective

in using the GigaTribe file sharing program was to receive child pornography rather than to

distribute it to others. Neither ground makes the distribution enhancement inapplicable to

this case.

                     a.     A § 2G2.2 Distribution Enhancement Does Not Constitute
                            Double Counting in This Case



       The district court concluded that because distribution was a necessary element of

Reingold’s crime of conviction, any harm associated with distribution was necessarily fully

accounted for in the base offense level of his Guideline. See United States v. Watkins, 667

F.3d 254, 261 (2d Cir. 2012) (stating that impermissible double counting occurs when

Guidelines enhancement is applied to reflect harm already “fully accounted for by another


                                              43
part of the guidelines” (alterations and internal quotation marks omitted)). The conclusion

is unwarranted.

       First, distribution need not be present in every conviction under the statute at issue.

Section 2252(a)(2) proscribes the knowing receipt or distribution of child pornography. See

United States v. Salim, 549 F.3d at 76 (holding that no double counting concern arises where

Guidelines enhance for “additional factor that will not be present in every conviction under

the statute” (internal quotation marks omitted)).

       Second, neither the applicable Guideline, U.S.S.G. § 2G2.2, nor the base offense level

dictated by that Guideline for this case, is limited to distribution crimes. Guideline § 2G2.2

sweeps broadly to address a wide range of criminal conduct occurring after child

pornography has been produced. As that Guideline’s title indicates, such conduct includes

(1) “Trafficking,” (2) “Receiving,” (3) “Transporting,” (4) “Shipping,” (5) “Soliciting,” and

(6) “Advertising Material Involving the Sexual Exploitation of a Minor,” as well as

(7) “Possessing” such material, both with and without intent to distribute.20

       To assist sentencing judges in distinguishing among such varied crimes and assessing

their severity in particular cases, § 2G2.2 draws various distinctions. To begin, the Guideline

draws a gross distinction between crimes of conviction implicating only simple possession

of child pornography21 and all other covered crimes, assigning a base offense level of 18 to



       20
         Guideline § 2G2.2 applies to defendants convicted of the myriad offenses
proscribed by 18 U.S.C. §§ 1466A, 2251(d)(1)(A), 2252, 2252A(a) and (b), and 2260(b).
See United States Sentencing Commission, Guidelines Manual, Apppendix A.
       21
        This first set also includes production and distribution crimes involving adapted or
modified depictions of a minor. See 18 U.S.C. § 2252A(a)(7).

                                              44
the former, see U.S.S.G. § 2G2.2(a)(1), and a base offense level of 22 to the latter, see id.

§ 2G2.2(a)(2). Within the latter set—which includes the receipt, solicitation, transportation,

and advertisement of child pornography, as well as its sale or distribution—the Guideline

provides for the base offense level to be reduced two levels in cases where “the defendant’s

conduct was limited to the receipt or solicitation” of child pornography, and “the defendant

did not intend to traffic, or distribute, in such material.” Id. § 2G2.2(b)(1). At the same time,

however, the Guideline provides for an enhancement to the base offense level for offenses

that involved the distribution of child pornography. See id. § 2G2.2(b)(3). Specifically, it

dictates a two-level enhancement whenever an offense involved distribution, see id.

§ 2G2.2(b)(3)(F), with the possibility of greater enhancements if the distribution was for

pecuniary or other tangible gain, see id. § 2G2.2(b)(3)(A)–(B), or to a minor, see id.

§ 2G2.2(b)(3)(C)–(E).

       This structure cannot be understood to address the harm associated with the

distribution of child pornography in a base offense level of 22 that applies equally to a

variety of offenses, some involving distribution and others not. Rather, § 2G2.2 is structured

so that the range of harms associated with distribution can be addressed through various

enhancements. Indeed, that conclusion has been so obvious to those of our sister circuits to

have considered the question that they have employed little discussion to reject double

counting challenges to the application of a § 2G2.2(b)(3)(F) enhancement to defendants

convicted of distribution offenses. See United States v. Chiaradio, 684 F.3d 265, 283 (1st

Cir. 2012) (identifying “absolutely no basis” for inferring that distribution enhancement did

not apply to defendant convicted of distribution crime); United States v. Frakes, 402

                                               45
F. App’x 332, 335–36 (10th Cir. 2010) (“Rather than forbidding double-counting, § 2G2.2

expressly allows a two-level enhancement for distribution,” such that a minimum two-point

enhancement “will always apply” to defendants convicted of distribution offenses (emphasis

in original)).

       We agree that a minimum two-level enhancement for distribution applies to the

calculation of Reingold’s Guidelines, and we conclude that the district court erred as a matter

of law in holding that such an enhancement constituted impermissible double counting.



                      b.     Reingold’s Offense Involved Distribution

       No different conclusion is warranted because the district court concluded that

Reingold’s primary purpose in committing the distribution offense of conviction was to

receive rather than to distribute child pornography.

       The application notes to § 2G2.2 define “distribution” to mean

       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.

U.S.S.G. § 2G2.2 cmt. n.1 (emphasis added). Use of the word “any” to modify “act” signals

that the phrase should be construed broadly. Similarly, use of the word “including” in the

first sentence and “includes” in the second sentence signals that the cited acts of distribution

are illustrative rather than exhaustive. See United States v. Ramos, 695 F.3d 1035, 1040

(10th Cir. 2012) (construing “including” in § 2G2.2 application note’s definition of


                                              46
distribution as “non-exhaustive”). Nothing in the definition suggests that application of a

§ 2G2.2(b)(3) enhancement depends on distribution being a defendant’s primary intent in

committing the offense of conviction. Indeed, a number of our sister circuits have construed

the enhancement to apply without regard to a defendant’s intent as long as the offense of

conviction involved distribution. See United States v. Hayden, No. 12-11346, 2013 WL

781804, at *5 (11th Cir. Mar. 4, 2013) (observing that “neither § 2G2.2(b)(3)(F) nor the

application notes impose an intent requirement” in upholding district court’s application of

enhancement); United States v. Ramos, 695 F.3d at 1041 [10th Cir.] (holding that “intent to

distribute is not required for act to qualify as ‘distribution’ under § 2G2.2(b)” (emphasis in

original)).

       Here, even if Reingold’s primary intent in joining GigaTribe was “not to distribute but

more to just receive” child pornography, May 10, 2011 Sentencing Tr. 16:10–11, the record

makes plain that he both knew from the start that distribution was a necessary condition of

receipt, see id. at 16:9, 19–22 (admitting that “in order to receive” materials, GigaTribe

“requires you to share with other people”), and, with that knowledge, took deliberate and

purposeful actions to effect that distribution, see generally United States v. Kelly, 147 F.3d

172, 177 (2d Cir. 1998) (approving definition of “intentionally” that requires defendant to

have “acted deliberately and purposefully”). A federal agent, discussing how GigaTribe

worked, explained that Reingold had to “specifically pick which folders or files he want[ed]

to share”; persons on Reingold’s “buddy list” could then share “not his whole computer, [but]

just the [files] that he selected.” May 10, 2011 Sentencing Tr. 12:24–25, 14:13–14. Indeed,

Reingold “admitted that he shared his child pornography folders with an estimated 10 to 20

                                             47
GigaTribe users on his invited buddy list.” PSR ¶ 9. Such conduct plainly supports

defendant’s conviction for distributing child pornography as well as application of the

§ 2G2.2(b)(3)(F) enhancement.

       As we recently stated in a summary order upholding such an enhancement,

“knowingly placing child pornography files in a shared folder on a peer-to-peer file-sharing

network constitutes distribution under U.S.S.G. § 2G2.2, even if no one actually obtains an

image from the folder.” United States v. Farney, 513 F. App’x 114, 116 (2d Cir. 2013). Our

sister circuits agree. See United States v. Conner, No. 12-3210, 2013 WL 1490109, at *6

(6th Cir. Apr. 11, 2013) (holding that “knowing use of [file-sharing service], much like the

posting of a file on a website, is sufficient to trigger section 2B2.2(b)(3)(F)’s two-level

enhancement”); United States v. Ramos, 695 F.3d at 1041 [10th Cir.] (concluding that when

“individual uses a peer-to-peer network file-sharing program with knowledge that the

program will deposit downloaded child-pornography files into a shared folder accessible to

other users—e.g., rendering files only a mouse-click away—then that person has engaged

in an act related to the transfer of child pornography” warranting § 2G2.2(b)(3)(F)

enhancement); United States v. Glassgow, 682 F.3d 1107, 1110 (8th Cir. 2012) (holding

§ 2G2.2(b)(3)(F) enhancement warranted where, inter alia, defendant “knowingly made files

available for distribution”); United States v. Spriggs, 666 F.3d 1284, 1287 (11th Cir. 2012)

(stating that “[w]hen the user knowingly makes the files accessible to others, the distribution

is complete”); United States v. Layton, 564 F.3d 330, 335 (4th Cir. 2009) (holding that

defendant who “knowingly us[es] a file-sharing program that allows others to access child

pornography files” commits the transfer act necessary to warrant § 2G2.2(b)(3)(F)

                                              48
enhancement); United States v. Carani, 492 F.3d 867, 876 (7th Cir. 2007) (concluding that

“notion” that defendant “could knowingly make his child pornography available for others

to access and download without this qualifying as ‘distribution’ does not square with the

plain meaning of the word”).

       We here reiterate as controlling our summary conclusion in Farney, and we clarify

that it applies without regard to whether the defendant’s primary purpose in placing child

pornography files in a file-sharing program was to receive or to distribute child pornography.

       Thus, on remand, the district court should recalculate Reingold’s Guidelines before

resentencing, applying enhancements under U.S.S.G. § 2G2.2(b)(3)(F), (b)(5), and (b)(6),

as warranted consistent with this opinion. While the district court is required correctly to

calculate and fairly to consider the Guidelines, see 18 U.S.C. § 3553(a)(4), nothing in this

opinion is intended to limit the district court’s discretion to consider a non-Guidelines

sentence pursuant to United States v. Booker, 543 U.S. 220, 245 (2005).

III.   Conclusion

       To summarize, we conclude as follows:

       1. The application of the five-year minimum sentence mandated by 18 U.S.C.

§ 2252(b)(1) is not so grossly disproportionate to the crime of distributing child pornography

as to be precluded in this case by the Cruel and Unusual Punishment Clause of the Eighth

Amendment. Accordingly, in exercising its sentencing discretion in this case, the district

court cannot impose a lesser prison sentence than the statutorily mandated minimum.




                                             49
       2. In calculating a defendant’s Sentencing Guidelines range for distributing child

pornography:

               a. A pattern enhancement pursuant to U.S.S.G. § 2G2.2(b)(5) applies to a

defendant who commits any two acts fitting the Guidelines definition of “sexual abuse or

exploitation of a minor,” without regard to the temporal proximity of those acts, the

defendant’s own minority at the time of such acts, or mitigating circumstances. Such

circumstances may inform a district court’s exercise of discretion in selecting a within-

Guidelines sentence or in imposing a non-Guidelines sentence, but they do not permit the

court to refrain from applying an otherwise warranted § 2G2.2(b)(5) enhancement to the

calculation of a defendant’s Guidelines range.

               b. Because a computer is not essential to the crime of distributing child

pornography, the computer-use enhancement provided in U.S.S.G. § 2G2.2(b)(6) does not

constitute impermissible double counting simply because an ever larger number of child

pornography distribution crimes are committed with computers.

               c. Because neither the statute of conviction, 18 U.S.C. § 2252(a)(2), nor the

applicable Guideline, § 2G2.2, is limited to distribution crimes, the distribution enhancement

provided in § 2G2.2(b)(3)(F) does not constitute impermissible double counting.

       Accordingly, we REMAND this case to the district court with direction that it vacate

Reingold’s sentence and RESENTENCE him consistent with this opinion, specifically

recalculating his Sentencing Guidelines range as indicated herein, and adhering to the

statutorily mandated minimum sentence of five years’ imprisonment.




                                             50
11‐2826‐cr
United States v. Reingold

SACK, Circuit Judge, concurring.

      I am in full agreement with the judgment of the Court.  I write only to

express my concern about parts of section 2.A of the majority opinion.  

      I would have much preferred that the majority confine itself to a more

narrow and straightforward analysis of the gravity‐of‐the‐offense aspect of the

Eighth Amendment inquiry.  That analysis is already fully included as part of the

section with which I take issue, as follows: 

      Starting with the gravity of the offense at issue, there can be no
      question that the dissemination of child pornography is a serious
      crime that causes real injury to particularly vulnerable victims.  As
      Congress, courts and scholars all[1] recognize, child pornography
      crimes at their core demand the sexual exploitation and abuse of
      children.  Not only are children seriously harmed – physically,
      emotionally, and mentally – in the process of producing such
      pornography, but that harm is then exacerbated by the circulation,
      often for years after the fact, of a graphic record of the childʹs
      exploitation and abuse.  See New York v. Ferber, 458 U.S. 747, 757‐59 &
      nn.9‐10 (1982) (citing congressional and scholarly reports, and court
      cases).[2]


      1
         I might have said ʺmany scholarsʺ on the theory that one is likely to find
a scholar who disagrees with nearly any point of view.
      2
          The victimsʹ statements in this case, which are set forth at length in the
district courtʹs opinion, powerfully illustrate the nature and severity of their

                                          -1-
       * * *




       [P]recisely because the prevention of such exploitation and abuse is
       ʺa government objective of surpassing importance,ʺ New York v.
       Ferber, 458 U.S. at 757; see id., at 756‐57 (ʺIt is evident beyond the
       need for elaboration that a Stateʹs interest in safeguarding the
       physical and psychological well‐being of a minor is compelling.ʺ
       (internal quotation marks omitted)), we cannot view the distribution
       of child pornography, however accomplished, as anything but a
       serious crime that threatens real, and frequently violent, harm to
       vulnerable victims, cf. Harmelin v. Michigan, 501 U.S. [957] at 1002‐03
       (1991) (Kennedy, J., concurring) (observing that characterization of
       drug possession with internet to distribute as a ʺnonviolent and
       victimlessʺ crime ʺis false to the point of absurdityʺ given ʺpernicious
       effectsʺ of drug use).

Maj. op. at [23, 25].

       Perhaps we cannot conclude from that excerpt alone that the sentence in

this case was ʺfairʺ – but that issue is simply not posed by this Eighth

Amendment inquiry.  It seems to me, though, that the language does answer

clearly and completely the legal question that is before the Court:  Whether this is

the ʺrare caseʺ in which the comparison between crime and punishment leads ʺto

an inference of gross disproportionality.ʺ  See Graham v. Florida, 130 S. Ct. 2011,

2022 (2010) (quoting Harmelin v. Michigan, 501 U.S. 957, 1005 (1991) (Kennedy, J.,

concurring in part and concurring in the judgment in part).  It is not.  And, that


injuries resulting from the receipt and dissemination of the material at issue.  See
United States v. C.R., 792 F.Supp. 2d 343, 378‐404 (E.D.N.Y. 2011).

                                         -2-
question having been answered, I think the majority should have stopped there,

and proceeded to the other legal issues that have been raised.

      Instead, the majorityʹs opinion includes graphic descriptions of one of the

pornographic images in evidence, id. at 23‐24, and discusses the effect on child

pornography of the ʺrecent digital revolution,ʺ id. at 24‐25; explains what it views

as the irrelevance of ʺReingoldʹs professed . . . principal interest in receiving

rather than distributing child pornography,ʺ id. at 25; describes the nature of

ʺGigaTribeʺ and the defendantʹs interaction with it, id. at 26; and makes reference

to the defendant’s sexual molestation of his minor half‐sister,3 id. at 26‐27.

      These may be  interesting observations, but are they necessary to the

resolution of this appeal?  I hardly think so.  Suppose the facts were to the

contrary.  Suppose the pornographic images were somewhat less graphic than

the one described; that they were received and distributed as photographs (as

pornographic material was in Ferber) and not electronically through file sharing

on the Internet; that Reingold did not allege that his principal interest was in

receiving and not distributing the pornographic images; and that he never ever

so much as touched a female human being other than his mother.  Are we to


      3
         That is the characterization used by the government.  Gov. Br. at 6.

                                          -3-
believe that on any such or vaguely similar facts and in light of the law reflected

in the two paragraphs of its opinion set forth in haec verba above, the majority

could or would have decided that a five year sentence here did constitute ʺcruel

and unusual punishmentʺ?  

      I don’t think so.  And, assuming I am correct, the verbiage to which I take

exception is unnecessary to the consideration and resolution of this case.  I would

therefore have omitted it.

      The omission would not be based on any general view on my part that a

judge must be averse to saying more in an opinion than is strictly necessary.  I do

not think so.4  But to borrow a phrase from death‐penalty cases and twist it, child

pornography is different.5  Focusing on subjects that are associated with our most

powerful taboos, these cases evoke uniquely strong, if differing, emotional,




      4
         Even if we were to characterize these additional statements as dicta, our
colleague Judge Leval was surely right when he wrote:  ʺ[D]ictum can serve
useful purposes.  We have no need to purge dictum from our opinions and we
shouldnʹt be embarrassed by its presence.ʺ   Pierre N. Leval, Judging Under the
Constitution: Dicta About Dicta, 81 N.Y.U. L. Rev. 1249, 1282 (2006). 
      5
         Cf. Harmelin, 501 U.S. at 994 (Kennedy, J., concurring in part and
concurring in the judgment in part) (ʺProportionality review is one of several
respects in which we have held that ʹdeath is differentʹ . . . .ʺ)

                                         -4-
moral, and cultural6 reactions from judges, necessarily based on the differing

beliefs, values, sensitivities, and life experiences of those judges.7

      I have no doubt that there are appeals in such cases which require the

reviewing court to engage in a carefully, even painfully, detailed analysis of the

child pornography and abuse at issue.  This is not one of them.  And when we go

beyond what is necessary to resolve this sort of case, by setting forth in

unnecessary or irrelevant detail the circumstances or other aspects of the crime,

we risk the appearance of explicitly or implicitly voicing our moral indignation

rather than exercising our legal judgment, which is of course our only charge. 

      I would have preferred then, as I have said, for the majority opinion to

have hewed more rigorously to the line of legal inquiry in the matter before us.

      * * *


      6
            See generally, e.g. Amy Adler, The Perverse Law of Child Pornography, 101
Colum. L. Rev. 209 (2001); see also id. at 211 (referring to ʺchild pornography law .
. . [as] caught up in a cultural maelstromʺ).
      7
         This not a criticism; it is an observation. And the issues I perceive are hardly
unique to the legal arena, as illustrated by a recent film review in The New York Times,
which begins: "Violence against children strikes most people as a uniquely terrible
phenomenon, which may be why filmmakers are so fond of it." A.O. Scott, After Two
Children Vanish, Agony Begets Recklessness, N.Y. Times, September 20, 2013, p. C 12.
It should be obvious in any event that I am not suggesting that the majority's judgment
was compromised by the nature of the case or any personal reaction to it – after all, I
agree with the judgment of the Court.

                                            -5-
         I also concur with the majority as to the use of Reingoldʹs name in the

caption of this case.  Whether I would do so were his name not already on the

record, I am not quite sure.  Although I am of the general view that the more

about an appeal that is public the better, including of course the names of the

parties, the dissection of Reingoldʹs mental condition and the nature of his

behavior is set forth in such unusually meticulous detail in the district courtʹs

lengthy opinion that I can understand that courtʹs decision to identify him by his

initials only.  But the fact that his name is not only available in the files of the

district court and this court, it can also be found on‐line using Google – attributed

on the website to Reuters – seems to me to make the decision much easier.  See

http://www.caringforourchildrenfoundation.org/?p=8932 (last visited Sept. 20,

2013).




                                           -6-
