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        IN THE UNITED STATES COURT OF APPEALS
                FOR THE FIFTH CIRCUIT
                                                                 United States Court of Appeals
                                                                          Fifth Circuit

                                                                        FILED
                                No. 12-10834                     February 12, 2014
                                                                   Lyle W. Cayce
UNITED STATES OF AMERICA,                                               Clerk


                                          Plaintiff – Appellee
v.

ROBERT L. BAKER,

                                          Defendant – Appellant



                Appeal from the United States District Court
                     for the Northern District of Texas




Before REAVLEY, DAVIS, and HIGGINSON, Circuit Judges.
HIGGINSON, Circuit Judge:
      Defendant-Appellant Robert Baker pleaded guilty to receiving material
involving the sexual exploitation of a minor. At sentencing, the district court
imposed a two-level enhancement under U.S.S.G. § 2G2.2(b)(3)(F) for
distribution of child pornography through Baker’s use of the file-sharing
program Frostwire. This appeal presents the question of whether the district
court properly applied the enhancement absent evidence that Baker knew
Frostwire enabled other users to access the child pornography he downloaded.
We find § 2G2.2(b)(3)(F) does not contain a scienter requirement and AFFIRM
the district court’s imposition of the two-level enhancement.
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                                 No. 12-10834
                         FACTUAL BACKGROUND
      Robert Baker installed Frostwire, a peer-to-peer file-sharing program,
on his computer and used it to download eight video files containing child
pornography. Peer-to-peer file-sharing programs like Frostwire allow groups
of computers using the same file-sharing network to connect directly with each
other and to share files among one another’s computer systems.               An
Immigration and Customs Enforcement (“ICE”) agent used Frostwire to twice
download a video of child pornography from an IP address subsequently
identified as Baker’s. When confronted, Baker pleaded guilty without a plea
agreement to one count of receiving visual depictions of a minor engaged in
sexually explicit conduct.
      The probation officer determined that Baker’s total offense level was
thirty-seven, which included his base offense level of twenty-two pursuant to
U.S.S.G. § 2G2.2(a)(2) and a five-level increase for distribution of child
pornography for the receipt of a thing of value under U.S.S.G. § 2G2.2(b)(3)(B).
Baker’s advisory guidelines range was set at 210 to 240 months imprisonment,
given his criminal history category of I.
      The parties filed responses and objections to the presentence report
(“PSR”). The government indicated that it was unclear whether the five-level
increase should apply absent evidence that Baker possessed specialized
knowledge of file-sharing software and “understood that Frostwire shared
unless he affirmatively took steps to prevent the sharing.” The government
maintained, however, that Baker should receive the two-level increase under
U.S.S.G. § 2G2.2(b)(3)(F) because Baker used Frostwire to seek out child
pornography, maintained the child pornography in a shared directory, did not
attempt to disable Frostwire’s default sharing function, and was not surprised
that the ICE agent was able to download child pornography from his computer.
Baker objected to both the five-level increase and the government’s alternate
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                                 No. 12-10834
two-level increase under § 2G2.2(b)(3)(F), arguing that neither enhancement
applied as he did not know that others could download files from his computer
under Frostwire’s “default settings.” Baker also argued that he was entitled
to a two-level decrease under § 2G2.2(b)(1) because his conduct was limited to
the receipt of child pornography.
      The district court rejected the five-level increase under § 2G2.2(b)(3)(B)
on the ground that the defendant could not expect to receive a thing of value—
access to a broader library of child pornography—in exchange for his
distribution of child pornography if he did not know he was sharing child
pornography through his use of Frostwire. The district court stated:

      In order to make the five-level increase, you would have to assume
      that the defendant understands the system well enough to know
      that if he uses file sharing that others can obtain the files he has.
      . . . And there’s no indication here that he had that knowledge or
      was skilled enough to have that knowledge.

The district court did, however, impose the two-level increase under §
2G2.2(b)(3)(F). Baker unsuccessfully renewed his objection to the two-level
increase, arguing that if he did not know how the file-sharing program worked
he could not have knowingly distributed pornography, as he maintained was
required for the § 2G2.2(b)(3)(F) enhancement.
      Applying the two-level increase, the district court found a total offense
level of thirty-four and advisory guidelines range of 151 to 188 months in
prison. The court downwardly departed from the range and sentenced Baker
to eighty months in prison, citing his serious health condition.
      Baker timely appealed his sentence. On appeal, he argues that the
district court erred when it increased his sentence two levels pursuant to §
2G2.2(b)(3)(F) because the guideline requires that the defendant knowingly
distribute child pornography other than to minors or for receipt of a thing of
value. As Baker contends that he was unaware that others could download
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                                 No. 12-10834
child pornography from his computer through Frostwire, he argues that he
should not have received the two-level enhancement. Moreover, because his
conduct was limited to receipt of child pornography, Baker maintains he
should receive a two-level decrease under § 2G2.2(b)(1).
      The government responds that no error occurred as § 2G2.2(b)(3)(F)
does not require a particular mens rea and, even if it does, Baker had
sufficient knowledge of Frostwire’s capabilities to justify the two-level
enhancement. The government further maintains that, even if an error did
occur, the error was harmless given the district court’s downward departure
in sentencing.
                          STANDARD OF REVIEW
      We review the district court’s interpretation and application of the
sentencing guidelines de novo and its findings of fact for clear error. United
States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008).
                                DISCUSSION
      Section 2G2.2(b)(3)(F) provides for a two-level increase “[i]f the offense
involved [] [d]istribution” of child pornography where the distribution is not to
minors or for something of value. The commentary 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.
      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.
      Our sister circuits agree that “distribution as defined in § 2G2.2 includes
operating a file sharing program that enables other participating users to
access and download files [then automatically] placed in a shared folder”
available to other users. United States v. Dodd, 598 F.3d 449, 452-53 (8th Cir.
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                                  No. 12-10834
2010). It is likewise generally accepted both in this circuit and others that the
five-level enhancement under § 2G2.2b(3)(B) applies only where the defendant
knew that he was distributing child pornography in exchange for a thing of
value through his use of file-sharing software.       See, e.g., United States v.
Vadnais, 667 F.3d 1206, 1209 (11th Cir. 2012) (“[W]e have explicitly rejected
any suggestion we automatically apply a [§ 2G2.2b(3)(B)] enhancement based
merely on a defendant’s use of a file-sharing program.”) (quoting United States
v. Durham, 618 F.3d 921, 931 (8th Cir. 2010)); United States v. Desadier, 495
F. App’x 501, 503 (5th Cir. 2012) (unpublished); United States v. Onken, 440 F.
App’x 304, 305 (5th Cir. 2011) (unpublished); United States v. Moore, 328 F.
App’x 308, 309 (5th Cir. 2009) (unpublished). Logically, the defendant could
not receive or anticipate receiving a thing of value in exchange for his
distribution unless cognizant of his sharing. The unsettled question, which
has divided our sister circuits, is whether the defendant must know of the file-
sharing program’s capabilities in order to incur the two-level enhancement
under § 2G2.2(b)(3)(F) for distribution of child pornography not to a minor nor
for a thing of value.
      Our court has not addressed whether § 2G2.2(b)(3)(F) contains such a
scienter requirement in any controlling opinions, though the unpublished case
of United States v. Nielson, 455 F. App’x 526 (5th Cir. 2011), is directly on point.
There, this court held that the enhancement applied if the defendant’s
computer supplied child pornography through the use of file-sharing software,
regardless of the defendant’s mental state:
      A defendant may receive a two-level increase in offense level if his
      offense involved distribution. . . . The enhancement was thus
      applicable in this case if the government proved by a
      preponderance of the evidence that a torrent containing child
      pornography was uploaded from Nielson's computer to the file-
      sharing network.

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                                      No. 12-10834
Nielson, 455 F. App’x at 527. 1 Nielson reinforced this court’s prior statement
that § 2G2.2(b)(3)(F) applied even if the defendant “distributed pornographic
images by accident.” United States v. Sistrunk, 37 F. App’x 88, 2002 WL
971623 at *1 (5th Cir. 2002) (unpublished). While these unpublished decisions
are not binding on our court, we elaborate below why we find them persuasive,
see United States v. Sauseda, 596 F.3d 279, 282 (5th Cir. 2010), and hold that
imposition of a two-level enhancement under § 2G2.2(b)(3)(F) does not require
scienter.
       First, a careful examination of the guideline’s plain language illustrates
that § 2G2.2(b)(3)(F) does not contain a scienter requirement. Ordinary rules
of statutory construction apply when interpreting sentencing guidelines.
United States v. Serfass, 684 F.3d 548, 551 (5th Cir. 2012). The commentary
accompanying § 2G2.2(b)(3)(F) defines “distribution” as “any act, including . . .
related to the transfer of material involving the sexual exploitation of a minor.”
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,” rather than limited
to its primary or natural sense, and does not contain an implicit mens rea.
United States v. Reingold, 731 F.3d 204, 228-29 (2d Cir. 2013).                        The
commentary’s definition of distribution as any act “related to the transfer” of
child pornography likewise evidences “§ 2G2.2's relatively expansive reach.”
U.S.S.G. § 2G2.2 cmt. n.1 (emphasis added); United States v. Ramos, 695 F.3d
1035, 1040-41 (10th Cir. 2012).           “‘Related’ is defined as ‘having similar
properties.’”    Ramos, 695 F.3d at 1041 (quoting Webster's Third New
International Dictionary 1916 (1981)). The range of examples of distribution
provided in the commentary further establishes that “transfer” should be


       1It is notable that this court upheld Nielson’s sentencing enhancement even though
Nielson specifically claimed in an unsworn statement that he changed the default settings to
prevent his child pornography torrents from being uploaded. Nielson, 455 F. App’x at 527.
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                                  No. 12-10834
interpreted liberally and does not require movement or even receipt by
someone else. See, e.g., Ramos, 695 F.3d at 1041 (“[T]he mere passive ‘posting’
of material in a publicly accessible website constitutes distribution without a
requirement that the poster have any intent that the material will be
transferred—or that the poster actually transfer the material to someone
else.”); United States v. Farney, 513 F. App’x 114, 116 (2d Cir. 2013) (holding
that placing child pornography files in a shared folder on a peer-to-peer file-
sharing network can constitute distribution, “even if no one actually obtains
an image from the folder”). Finally, “use of the word ‘including’ . . . signals that
the cited acts of distribution are illustrative rather than exhaustive.”
Reingold, 731 F.3d at 228-29; see also Ramos, 695 F.3d at 1040 (finding that
the commentary’s use of “including” suggests that “the list of outlawed conduct
is non-exhaustive”).     Moreover, the guideline commentary lists “posting
material involving the sexual exploitation of a minor on a website for public
viewing” as an example of distribution.            U.S.S.G. § 2G2.2 cmt. n.1.
Downloading child pornography to a publically accessible folder through use of
file-sharing software is akin to posting such material.
      The language surrounding the operative definition reinforces this plain-
language reading of § 2G2.2(b)(3)(F). In the same commentary that defines
“distribution” without requiring an express mens rea, the Sentencing
Commission defined “distribution to a minor” as the “knowing distribution to
an individual who is a minor at the time of offense.” U.S.S.G. § 2G2.2 cmt. n.1
(emphasis added). The drafters’ explicit use of a scienter requirement in this
instance indicates that its omission from the definition of “distribution” was
not an oversight in need of judicial insertion. See United States v. Ray, 704
F.3d 1307, 1313 (10th Cir. 2013) (“Truly, the drafters of the commentary to §
2G2.2 knew how to include a scienter requirement when they wanted to.”);
Serfass, 684 F.3d at 552 (“The inclusion of a knowledge requirement in one
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                                    No. 12-10834
portion of the guideline confirms that its omission from another portion of the
same guideline was intentional.”); United States v. Singleton, 946 F.2d 23, 25
(5th Cir. 1991) (“[T]he precision of the drafters in including mens rea in
neighboring sections indicates that the reason that the section does not use the
word ‘knowingly’ is that the drafters did not wish such requirement to apply.”).
      Under our precedent, “the plain language of the guideline controls
when it (1) is not ambiguous and (2) produces a result that is not absurd.”
Serfass, 684 F.3d at 553. For the reasons outlined above, the language of
§ 2G2.2(b)(3)(F) unambiguously does not contain a scienter requirement.
Applying § 2G2.2(b)(3)(F) without a scienter requirement also does not
produce an absurd result. Baker’s dissemination of child pornography
through his use of Frostwire—whether knowingly or not—contributed to the
proliferation of illicit material and increased harm to the children exploited
by its creation and distribution.
      Neither the general presumption against strict-liability crimes nor the
rule of lenity applies here. While crimes are generally presumed to require
mens rea, Staples v. United States, 511 U.S. 600, 605-606 (1994), this court
has repeatedly declined to read a mens rea requirement into a sentencing
guideline absent explicit direction to do so. See, e.g., United States v. Vargas-
Dunn, 356 F.3d 598, 605-606 (5th Cir. 2004); Singleton, 946 F.2d at 25
(holding that sentence enhancement for unlawful possession of a stolen
firearm applied regardless of whether defendant knew the gun was stolen);
Serfass, 684 F.3d at 553 (holding that the sentence enhancement for offenses
involving importation of methamphetamine did not require knowledge that
the methamphetamine had been imported). “The guidelines drafters have
been explicit when they wished to import a mens rea requirement.”
Singleton, 946 F.2d at 25.


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       Similarly, we apply the rule of lenity only to guidelines provisions that
are ambiguous. See United States v. Bustillos-Pena, 612 F.3d 863, 868 (5th
Cir. 2010) (“Although the provisions of the Sentencing Guidelines are not
statutes, we apply the rule of lenity to them when we find that they are
ambiguous.”). The above analysis of the plain language of § 2G2.2(b)(3)(F)
evidences that there is no ambiguity. See Singleton, 946 F.2d at 25
(observing the rule of lenity does not apply where drafters declined to impose
mens rea).
       We therefore find that the plain language of § 2G2.2(b)(3)(F) does not
contain a scienter requirement and is not ambiguous. This interpretation is
controlling. We acknowledge that some of our sister circuits have held that
§ 2G2.2(b)(3)(F) contains a scienter requirement. Compare United States v.
Ray, 704 F.3d 1307, 1311-12 (10th Cir. 2013) (finding § 2G2.2(b)(3)(F) does
not require mens rea), and United States v. Hayden, 511 F. App’x 870, 876
(11th Cir. 2013) (unpublished) (same), with United States v. Reed, No. 11-
4820, 2013 WL 5976374 at *1 (2d Cir. Nov. 12, 2013) (unpublished) (holding
that § 2G2.2(b)(3)(F) contains a scienter requirement), United States v.
McManus, 734 F.3d 315, 319 (4th Cir. 2013) (same), and United States v.
Robinson, 714 F.3d 466, 468 (7th Cir. 2013) (same). 2 We maintain, however,
that the position we affirm today is textually sound.



       2 The Sixth and Eighth Circuits have held that use of file-sharing software creates a
“strong presumption” that the users understand others can access their files, such that the
government does not need to prove knowledge to apply the enhancement. See United States
v. Conner, 521 F. App’x 493, 499-501 (6th Cir. 2013) (unpublished); United States v. Dodd,
598 F.3d 449, 452 (8th Cir. 2010). The Eighth Circuit does, however, allow the defendant to
rebut the presumption that he knew of the file-sharing program’s capabilities through
“concrete evidence of ignorance.” United States v. Durham, 618 F.3d 921, 926-932 (8th Cir.
2010). The Sixth Circuit has not reached the question of whether the Eighth Circuit’s option
for rebuttal applies. Conner, 521 F. App’x at 501. The Ninth Circuit has considered but not
decided whether § 2G2.2(b)(3)(F) contains a scienter requirement. See United States v.
Scheidt, 465 F. App’x 609, 610 (9th Cir. 2012) (unpublished) (“We have not yet resolved the
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                                      No. 12-10834
       Since we hold that § 2G2.2(b)(3)(F) does not contain a scienter
requirement, the district court did not err in applying the enhancement even
absent evidence of Baker’s knowledge. 3
       As the district court did not err when it increased Baker’s offense level
by two levels pursuant to § 2G2.2(b)(3)(F), it likewise did not err when it
failed to decrease Baker’s offense level by two levels under § 2G2.2(b)(1).
Section 2G2.2(b)(1) applies only when the “the defendant’s conduct was
limited to the receipt or solicitation of material involving the sexual
exploitation of a minor.” Baker’s conduct was not limited to the receipt of
child pornography but involved distribution. As a result, § 2G2.2(b)(1) is
inapplicable.
                                    CONCLUSION
       For the reasons set forth above, we AFFIRM Baker’s sentence.




issue of whether the use of a file-sharing program, without more, can support the award of
distribution points under section 2G2.2(b).”). Finally, we observe that when courts insert
scienter, it is unclear how knowledge would be proven as to the peer-to-peer capabilities of
file-sharing software. Cf. Robinson, 714 F.3d at 468 (allowing two-level enhancement where
defendant was “reckless in failing to discover that the files he was downloading could be
viewed online by other people”).
        3 In light of this holding, we need not reach the question of whether Baker knew in

fact that he was sharing child pornography through his use of Frostwire. The district court
found that there was “no indication here that [Baker] had that knowledge or was skilled
enough to have that knowledge.” And the government conceded that “Baker did not express
a familiarity with file-sharing software generally or indicate in his interviews that he knew
he was specifically sharing files and that he understood Frostwire permitted sharing.” Yet
the government elsewhere cites Baker’s lack of surprise that the agent was able to download
child pornography from his computer and the sophisticated search terms employed to find
child pornography as evidence of Baker’s purported knowledge of Frostwire’s capabilities.
We do not decide this issue.
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