11-4820-cr
United States v. Reed


                 UNITED STATES COURT OF APPEALS
                     FOR THE SECOND CIRCUIT

                              SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT.  CITATION TO
A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007 IS PERMITTED AND IS
GOVERNED BY FEDERAL RULE OF APPELLAT E PROCEDURE 32.1 AND THIS COURT' S
LOCAL RULE 32.1.1.   WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED
WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH TH E NOTATION "SUMMARY ORDER" ).     A PARTY
CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT
REPRESENTED BY COUNSEL.

           At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Thurgood Marshall United
States Courthouse, 40 Foley Square, in the City of New York, on
the 12th day of November, two thousand thirteen.

PRESENT:   Ralph K. Winter,
           Rosemary S. Pooler,
           Denny Chin,
                     Circuit Judges.

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UNITED STATES OF AMERICA,
                    Appellee,

                        -v-                           11-4820

JESSE REED,
                        Defendant-Appellant.

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FOR APPELLEE:                 Tamara B. Thompson and Brenda K.
                              Sannes, Assistant United States
                              Attorneys, for Richard S. Hartunian,
                              United States Attorney for the Northern
                              District of New York, New York.
FOR DEFENDANT-APPELLANT: Charles F. Willson, Nevins Law Group
                         LLC, East Hartford, Connecticut.

         Appeal from the United States District Court for the

Northern District of New York (Mordue, J.).

         UPON DUE CONSIDERATION, IT IS ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is VACATED and

the case is REMANDED for further proceedings.

         Defendant-appellant Jesse Reed pled guilty, without a

plea agreement, to one count of receipt of child pornography, in

violation of 18 U.S.C. § 2252A(a)(2)(A), and one count of

possession of child pornography, in violation of 18 U.S.C.

§ 2252A(a)(5)(B).   The district court (Mordue, J.) sentenced

Reed principally to 120 months' imprisonment on each count, to

be served concurrently.

         On appeal, Reed challenges the procedural

reasonableness of his sentence, specifically the district

court's two-level increase in his offense level pursuant to U.S.

Sentencing Guidelines Manual ("U.S.S.G." or "Guidelines")

§ 2G2.2(b)(3)(F).   We apply de novo review to the district

court's rulings on questions of law, including Guidelines

interpretation, and clear-error review to its rulings on

questions of fact, including those that inform Guidelines




                                2
application.    See United States v. Legros, 529 F.3d 470, 474 (2d

Cir. 2008).1

           We assume the parties' familiarity with the underlying

facts, the procedural history of the case, and the issues

presented for review.

           Section 2G2.2(b)(3) of the Guidelines provides a range

of enhancements for child pornography offenses involving

distribution.     A five-level enhancement applies if the offense

involved distribution "for the receipt, or expectation of

receipt, of a thing of value, but not for pecuniary gain."

§ 2G2.2(b)(3)(B).     Pursuant to § 2G2.2(b)(3)(F), a two-level

enhancement applies if the offense involved distribution other

than distribution described in § 2G2.2(b)(3)(A) through (E).

           We recently held in United States v. Reingold, 731

F.3d 204 (2d Cir. 2013), that the distribution enhancement under

U.S.S.G. § 2G2.2(b)(3)(F) applies when a defendant "knowingly

plac[es] child pornography files in a shared folder on a

peer-to-peer file-sharing network . . . even if no one actually

obtains an image from the folder."         Id. at 229 (internal

quotation marks and citation omitted).          Accordingly, while there

is no requirement of intent to distribute for § 2G2.2(b)(3)(F)

     1
            The government argues that plain error review applies as Reed did
not specifically object to the two-level enhancement. We disagree. Reed
made a lack of knowledge argument in opposing the five-level enhancement.

                                      3
to apply, there is a knowledge requirement: the defendant must

know that depositing files into the folder will make the files

available to others.   Indeed, we observed that the record in

Reingold made "plain that [defendant] . . . knew from the start

that distribution was a necessary condition of

receipt . . . and, with that knowledge, took deliberate and

purposeful actions to effect that distribution."   Id. (internal

citations omitted).

         Reed argues that there is insufficient evidence to

support the district court's application of a two-level

enhancement pursuant to § 2G2.2(b)(3)(F).   We do not decide the

legal sufficiency of the evidence, but we remand for further

proceedings.   Where, as here, the district court failed to make

a finding of fact necessary to apply an enhancement under the

Guidelines, we vacate the sentence and remand the case for

further proceedings.   See, e.g., United States v. Scotti, 47

F.3d 1237, 1251-52 (2d Cir. 1995).

         The pre-sentence report recommended a five-level

enhancement pursuant to § 2G2.2(b)(3)(B).   In his sentencing

memorandum, Reed objected to the enhancement, arguing "[t]here

is no proof in the probation report or in any of the discovery

materials . . . that Mr. Reed was aware of or made a conscious



                                4
decision to activate 'file sharing' on his computer because he

received or expected to receive something of value."      At

sentencing, the district court agreed that the five-level

enhancement was unwarranted "because there is no evidence that

[Reed] shared or distributed child pornography in anticipation

of or while reasonably believing in the possibility of the

receipt of child pornography in return."    Instead, the district

court explained it was applying the two-level enhancement

pursuant to § 2G2.2(b)(3)(F) "because the forensic evidence

confirms that more than 600 image and video files of child

pornography were located in peer-to-peer sharing folders on

[Reed's] computer and these files are being offered for

sharing."

            The district court did not, however, make any finding

as to whether Reed "knowingly plac[ed]" child pornography files

into shared folders.    Reingold, 731 F.3d at 229 (internal

quotation marks and citation omitted).     Indeed, Reed

specifically argued, albeit in the context of the enhancement

under § 2G2.2(b)(3)(B), that there was no evidence that he was

aware "file sharing" was activated on his computer.

            We acknowledge that there is evidence in the record

that Reed was a sophisticated and long-time computer user.



                                 5
While these facts arguably could support an inference that Reed

knew he was placing files in a peer-to-peer sharing folder, the

district court did not make such a finding, as Reingold

requires.    We remand in accordance with the procedures of United

States v. Jacobson, 15 F.3d 19, 22 (2d Cir. 1994), for the

district court to consider the question, after giving the

parties an opportunity to be heard.2

            Accordingly, we VACATE the judgment of the district

court and REMAND the case for further proceedings as consistent

with this order.

                                   FOR THE COURT:
                                   Catherine O'Hagan Wolfe, Clerk




     2
            In the interest of judicial economy, this panel will retain
jurisdiction over any subsequent appeal. See Jacobson, 15 F.3d at 22.
Accordingly, either party may notify the Clerk of a renewed appeal within
fourteen days of the district court's decision.

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