                Case: 14-12438       Date Filed: 04/21/2015       Page: 1 of 8


                                                                                   [PUBLISH]

                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                              ________________________

                                     No. 14-12438
                               ________________________

                      D.C. Docket No. 4:14-cr-00001-MW-CAS-1


UNITED STATES OF AMERICA,

                                                                           Plaintiff-Appellee,

                                             versus

DONALD EUGENE CREEL,

                                                                       Defendant-Appellant.

                               ________________________

                     Appeals from the United States District Court
                         for the Northern District of Florida
                            ________________________

                                       (April 21, 2015)

Before TJOFLAT, WILLIAM PRYOR, and BARKSDALE, ∗ Circuit Judges.

WILLIAM PRYOR, Circuit Judge:

       This appeal requires us to decide whether the definition of “[d]istribution” of

child pornography under the Sentencing Guidelines, U.S.S.G. § 2G2.2(b)(3)(F)

∗
 Honorable Rhesa H. Barksdale, United States Circuit Judge for the Fifth Circuit, sitting by
designation.
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(Nov. 2013), includes an element of mens rea. Donald Eugene Creel pleaded guilty

to receipt of child pornography, 18 U.S.C. §§ 2252A(a)(2)(A), (b)(1), and received

an enhanced sentence when the district court ruled that he “[d]istribut[ed]” child

pornography, U.S.S.G. § 2G2.2(b)(3)(F), through a file sharing program on his

computer. Because distribution of child pornography, id., does not require an

offender to know that he made child pornography accessible to others, we affirm

Creel’s sentence.

                                I. BACKGROUND

      In Florida, Creel downloaded child pornography to his computer through an

internet-based file sharing program. File sharing programs allow users “to search

for files located in the shared folder that is created by the software on the

computers of other users, and when found, the requesting user can download the

file.” United States v. Vadnais, 667 F.3d 1206, 1208 (11th Cir. 2012). “The copied

file is placed in a designated sharing folder on the requesting user’s computer,

where it is available for other users to download in turn . . . .” Metro-Goldwyn-

Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913, 921, 125 S. Ct. 2764, 2771

(2005).

      After police in Pennsylvania downloaded child pornography from Creel’s

computer through the file sharing program, a grand jury indicted Creel for one

count of knowing receipt or distribution of child pornography, 18 U.S.C.

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§§ 2252A(a)(2)(A), (b)(1), and one count of possession of child pornography, id.

§§ 2252A(a)(5)(B), (b)(2). He pleaded guilty to the first count, and the government

agreed to dismiss the second count.

      The presentence investigation report calculated Creel’s guideline range as

151 to 188 months of imprisonment, U.S.S.G. ch. 5, pt. A, Sentencing Table,

including a two-level enhancement for “[d]istribution” of child pornography, id.

§ 2G2.2(b)(3)(F). Creel objected to the sentencing enhancement on the ground that

he did not know that other users of the file sharing program could access the child

pornography that he had downloaded. The probation officer responded that,

according to a police interview with Creel, Creel’s son installed the program on

Creel’s computer and taught Creel how to use it, but Creel later “figured out some

[o]f it” on his own. Creel told police that he searched for terms such as “lolita” and

“teen,” and that the results of the search were “whatever they got that matches the

search terms.” The probation officer “believe[d] this statement [was] telling as to

how much [Creel] knew about the concept of file-sharing, in that [Creel]

understood that files [were] being downloaded from other users.” The probation

officer also “noted that[,] in [the program], the upload speeds are clearly indicated

in a column adjacently located to the column that indicates download speeds.”

      At Creel’s sentencing hearing, a special agent for Immigration and Customs

Enforcement testified about a recorded interview between Creel and police. The

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special agent testified that Creel admitted that he used the program to download

child pornography for a period of one-and-one-half months and that he had to

reformat the hard drive on his computer and reinstall the Windows operating

system “several times” because one of the files he downloaded contained a

computer virus. The special agent testified that “[i]t was clear from . . . listening to

the audio clip that . . . Creel understood that he was using a file-sharing program.”

      Based on the presentence investigation report and the special agent’s

testimony, the district court ruled that Creel distributed child pornography. Id. The

district court found “that file sharing was used, that he knew it was being used, was

accessing it.” The district court also found “that the presentence investigation

report is accurate” and that, “even if knowledge was critical or dispositive, . . .

[Creel] indeed meets the qualifications for the two-level enhancement for

distribution under 2G2.[2](b)(3)[(F)].” The district court varied downward from

Creel’s guideline range and sentenced him to 84 months of imprisonment.

                          II. STANDARDS OF REVIEW

      “The district court’s factual findings are reviewed for clear error, and its

application of those facts to justify a sentencing enhancement is reviewed de

novo.” United States v. Spriggs, 666 F.3d 1284, 1286 (11th Cir. 2012). “For a

factual finding to be clearly erroneous, this [C]ourt, after reviewing all of the

evidence, must be left with a definite and firm conviction that a mistake has been

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committed.” United States v. Rodriguez-Lopez, 363 F.3d 1134, 1137 (11th Cir.

2004) (internal quotation marks and citation omitted). The factual findings “cannot

be based on speculation,” United States v. Newman, 614 F.3d 1232, 1238 (11th

Cir. 2010), but the district court may draw “reasonabl[e] . . . infer[ences]” from the

facts in the record, United States v. Scott, 441 F.3d 1322, 1327 (11th Cir. 2006).

                                III. DISCUSSION

      Creel argues that the district court erred when it enhanced his sentence for

“[d]istribution” of child pornography, U.S.S.G. § 2G2.2(b)(3)(F). Creel argues that

the enhancement for distribution requires him to know that other users of the file

sharing program could access the child pornography on his computer. He argues

that there was no evidence that he had that knowledge. Creel’s arguments fail.

      The commentary to section 2G2.2 of the Guidelines defines distribution as

“any act, including possession with intent to distribute, production, transmission,

advertisement, and transportation, related to the transfer of material involving the

sexual exploitation of a minor.” Id. § 2G2.2, cmt. n.1. The commentary also states

that, “[a]ccordingly, 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.” Id.

      No element of mens rea is expressed or implied by this definition. “We look

to the plain language of the definition[] to determine [its] elements, and we

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presume that . . . the Sentencing Commission said what [it] meant and meant what

[it] said.” United States v. Smith, 775 F.3d 1262, 1267 (11th Cir. 2014) (internal

quotation marks and citation omitted). The definition requires only that the “act . . .

relate[s] to the transfer” of child pornography. U.S.S.G. § 2G2.2, cmt. n.1.

      If the Sentencing Commission “meant” to require knowledge, it would have

“said” as much. Smith, 775 F.3d at 1267. Section 2G2.2(B)(3) provides six

sentencing enhancements for different types of distribution of child pornography,

including a five-level enhancement for “[d]istribution to a minor.” U.S.S.G.

§ 2G2.2(b)(3)(C). In the same comment to the Guidelines where distribution is

defined, “[d]istribution to a minor” is defined as “knowing distribution to an

individual who is a minor at the time of the offense.” Id. § 2G2.2, cmt. n.1

(emphasis added). That both terms are defined in the same comment, id., but only

one definition includes an express element of mens rea, implies that the other

definition has no element of mens rea. See Fedorenko v. United States, 449 U.S.

490, 512–13, 101 S. Ct. 737, 750 (1981) (explaining that the “deliberate omission

of [a] word” that appears in an adjacent textual provision “compels the conclusion”

that the omitted word should not be “impl[ied]”). Although we have stated in dicta

that distribution occurs “[w]hen the user [of a file sharing program] knowingly

makes the files [on his computer] accessible to others,” Spriggs, 666 F.3d at 1287,

our dicta cannot be squared with the plain language of the commentary.

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       Our reading of the commentary comports with two of our sister circuits that

have addressed this issue and held that the commentary “unambiguously does not

contain a scienter requirement.” United States v. Baker, 742 F.3d 618, 622 (5th Cir.

2014); see also United States v. Ray, 704 F.3d 1307, 1313 (10th Cir. 2013). These

sister circuits have held that “the phrase [‘any act . . . related to the transfer’ of

child pornography, U.S.S.G. § 2G2.2, cmt. n.1,] should be construed broadly,”

Baker, 742 F.3d at 621, and that “the drafters of the commentary to [section] 2G2.2

knew how to include a scienter requirement when they wanted to,” Ray, 704 F.3d

at 1313. We acknowledge that four of our sister circuits have held that section

2G2.2(b)(3)(F) requires an individual to know that he “[d]istribut[ed]” child

pornography, United States v. Baldwin, 743 F.3d 357, 361 (2d Cir. 2014) (holding

that “a defendant [must know] that his use of [file sharing] software would make

child-pornography files accessible to other users”); United States v. Layton, 564

F.3d 330, 335 (4th Cir. 2009) (same); United States v. Robinson, 714 F.3d 466, 468

(7th Cir. 2013) (same); United States v. Dodd, 598 F.3d 449, 452 (8th Cir. 2010)

(holding that use of a file sharing program creates a presumption that an individual

knew he distributed child pornography), but those decisions are inconsistent with

the “plain language” of the commentary, Smith, 775 F.3d at 1267.

       Finally, we hold, in the alternative, that even if knowledge is an element of

“[d]istribution,” U.S.S.G. § 2G2.2(b)(3)(F), the district court did not clearly err

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when it found that Creel knew that other users of the file sharing program could

access the child pornography on his computer. The district court stated that the

special agent’s testimony was “credible” and the presentence investigation report

was “accurate,” and “[w]e defer to the credibility choices made by the district

court,” Harris v. Schonbrun, 773 F.3d 1180, 1183 (11th Cir. 2014) (internal

quotation marks and citation omitted). Based on those sources, the district court

was entitled to find that Creel knew that other users could access the child

pornography on his computer.

                               IV. CONCLUSION

      We AFFIRM Creel’s sentence.




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