                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 19-1906
                        ___________________________

                             United States of America,

                        lllllllllllllllllllllPlaintiff - Appellee,

                                           v.

                             Justin Stephen Martinez,

                      lllllllllllllllllllllDefendant - Appellant.
                                       ____________

                     Appeal from United States District Court
                for the Southern District of Iowa - Council Bluffs
                                 ____________

                             Submitted: April 13, 2020
                               Filed: July 31, 2020
                                  ____________

Before COLLOTON, GRUENDER, and GRASZ, Circuit Judges.
                        ____________

COLLOTON, Circuit Judge.

       Justin Martinez pleaded guilty to knowingly receiving a visual depiction of a
minor engaging in sexually explicit conduct. See 18 U.S.C. § 2252(a)(2), (b)(1). The
district court1 determined an advisory sentencing guideline range of 292 to 365

      1
       The Honorable John A. Jarvey, Chief Judge, United States District Court for
the Southern District of Iowa.
months’ imprisonment, and sentenced Martinez to a term of 330 months. Martinez
appeals, arguing that the district court committed procedural error when it applied a
two-level increase for a defendant who “knowingly engaged in distribution” of
material involving sexual exploitation of a minor. USSG § 2G2.2(b)(3)(F). We
conclude that the court made an express finding of knowledge that was supported by
sufficient evidence to meet the government’s burden of proof, so there was no error
in applying the increase. We therefore affirm the judgment.

       Between June 2017 and April 2018, investigators downloaded approximately
1,000 files containing child pornography from internet protocol addresses that were
associated with Martinez. In April 2018, officers executed a search warrant at
Martinez’s residence and seized a laptop computer, a cellular telephone, and a thumb
drive. Investigators found several files containing child pornography on the thumb
drive. Forensic analysis located a peer-to-peer file-sharing program called BitTorrent
on the laptop and cell phone, but found no child pornography on those devices.

      Martinez admitted that he used the BitTorrent file-sharing program on his
laptop and cell phone to download child pornography. He explained that he used the
images for sexual gratification, but then deleted them—some after several minutes,
others after several hours. Martinez said that he was careful to delete images from
the shared folder within the file-sharing program, because he knew that the file-
sharing system was capable of sharing the images, and he wanted to prevent others
from accessing the files.

       A grand jury charged Martinez in a five-count indictment, and he pleaded
guilty to one count of knowingly receiving a visual depiction of a minor engaging in
sexually explicit conduct. At sentencing, he objected to the two-level increase under
USSG § 2G2.2(b)(3)(F) for a defendant who knowingly engaged in distribution.
Martinez maintained that he was attempting not to share the files that he downloaded,
and therefore did not “knowingly” engage in distribution. The court applied the

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increase because Martinez “knew the characteristics of the BitTorrent program” and
was “fully aware of its capabilities.” We review a district court’s application of the
guidelines de novo and its factual findings for clear error. United States v. Grimes,
888 F.3d 1012, 1017 (8th Cir. 2018).

       On appeal, Martinez argues that the district court erred in applying the two-
level increase. Section 2G2.2(b)(3)(F) provides for a two-level enhancement “[i]f the
defendant knowingly engaged in distribution” of child pornography. USSG
§ 2G2.2(b)(3)(F). A defendant “knowingly” engages in distribution if the defendant
“knowingly committed the distribution.” USSG § 2G2.2, comment. (n.2).
“Distribution” means “any act . . . related to the transfer of material involving the
sexual exploitation of a minor.” USSG § 2G2.2, comment. (n.1).

       The district court made an express finding of knowledge sufficient to support
the two-level increase. The court found that Martinez “knew the characteristics of the
BitTorrent program” and “was fully aware of its capabilities.” This finding is
supported by the record. Martinez admitted that he downloaded files through the
BitTorrent program and knew that the program allowed others to access files that he
placed into the shared folder. That he attempted to delete files from the shared folder
to avoid sharing does not defeat the finding. Even if Martinez sought to limit
distribution, his admissions show that he knew the files were amenable to sharing
before he deleted them. See United States v. Cates, 897 F.3d 349, 358-59 (1st Cir.
2018). That investigators downloaded hundreds of files from Martinez’s shared
folder established that the images were in fact distributed.

       Martinez asserts that the district court’s ruling was premised on a legal error
because the court at one point said that the two-level increase applies “absent
concrete evidence of ignorance.” The quoted phrase comes from United States v.
Dodd, 598 F.3d 449, 452 (8th Cir. 2010), which reasoned under a former version of
the guideline that “[a]bsent concrete evidence of ignorance—evidence that is needed

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because ignorance is entirely counterintuitive—a fact-finder may reasonably infer that
the defendant knowingly employed a file sharing program for its intended purpose.”
Id. at 452. At that time, the increase applied if an offense “involved . . .
[d]istribution,” USSG § 2G2.2(b)(3)(F) (2009), with “distribution” defined as “any
act . . . related to the transfer of material involving the sexual exploitation of a
minor.” Id., comment. (n.1).

      Effective November 1, 2016, the Sentencing Commission amended the
guideline to add an express scienter requirement of knowledge. USSG Supp. to App.
C, Amend. 801, at 144-45 (2016). The Commission stated that the amendment
“generally adopt[ed]” the approach of three circuits that “require[d] a showing that
the defendant knew of the file-sharing properties of the program.” Id. The
Commission contrasted the approach of these three circuits with the rule of Dodd that
“knowledge may be inferred from the fact that a file-sharing program was used,
absent ‘concrete evidence’ of ignorance,” but did not address whether the Dodd
inference was reasonable or sufficient. Id. Martinez argues that the guideline
amendment rejected Dodd, and that the district court thus applied an incorrect legal
standard by requiring him to produce “concrete evidence of ignorance.” This court
previously deemed it unnecessary to decide whether the Dodd formulation is
consistent with the amended guideline. United States v. Nordin, 701 F. App’x 545,
547 (8th Cir. 2017) (per curiam).

       The important point for present purposes is that the government bears the
burden to prove by a preponderance of the evidence that the defendant knowingly
engaged in distribution. See United States v. Smith, 910 F.3d 1047, 1056 (8th Cir.
2018). We need not address whether evidence that a file-sharing program was used
is sufficient by itself to support an inference that the defendant had the requisite
knowledge. Although the district court recited language from Dodd, the court’s
finding relied on direct evidence of knowledge beyond the simple fact that files were
transferred through a file-sharing program. Based on Martinez’s admissions, the

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court found not only that Martinez used the BitTorrent file-sharing program, but also
that he knew of its characteristics and its capabilities. On that basis, the court found
that Martinez knowingly engaged in distribution. The court did not shift the burden
of proof to Martinez, and the evidence cited was sufficient to satisfy the government’s
burden. There was thus no legal error.

      The judgment of the district court is affirmed.
                     ______________________________




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