Between 1997 and 2010, according to a report by Families Against Mandatory Minimums (“FAMM”), sentences in child pornography cases increased by 500 percent. That report surveyed judges across the country and found that seventy percent of them believed that the U.S. Sentencing Guidelines ranges for possession of child pornography were “too harsh” and that sentences for receipt of child pornography were “excessive.”


The FAMM report cited comments made by U.S. District Court Judge Robert W. Pratt, sitting in Des Moines, Iowa, in a 2008 Wall Street Journal article (“Making Punishment Fit the Most Offensive Crimes”) that the federal sentencing guidelines in child pornography crimes “do not appear to be based on any sort of science and the Court has been unable to locate any particular rationale for them beyond the general revulsion that is associated with child-related offenses.”


One of those guidelines referred to by Judge Pratt is Guideline § 2G2.2 which deals with: “Trafficking in Material Involving The Sexual Exploitation of a Minor; Receiving, Transporting, Shipping, or Advertising Material Involving the Sexual Exploitation of a Minor; Possessing Material Involving the Sexual Exploitation of a Minor With Intent to Traffic, Possessing Material Involving the Sexual Exploitation of a Minor.”


Federal Sentencing Enhancements


Amended numerous times since its original 1987 enactment, Subsection (b)(3)(F) of § 2G2.2 provides recommended sentencing ranges for a conviction involving the receipt, possession and distribution of child pornography in violation of 18 U.S.C. § 2252A(a)(2)(B) and (a)(5)(B). If the conviction involved distribution, Subsection (b)(3)(F) applies a two-level sentence enhancement if the pornographic depictions entail sadistic or masochistic conduct.


And if the distribution involves the use of a peer-to-peer network, the case law in the Fifth, Tenth, and Eleventh Circuits dating back to 2013 was that the government did not have to show the defendant had “knowledge” that his child pornography was being shared (or accessed) by others—the mere use of the network triggered the two-level enhancement. This case law conflicted with the case law (dating back to 2009) in the Second, Fourth and Seventh Circuits which required a showing that the defendant knew his child pornography being shared in the peer-to-peer network.


Knowledge Requirement for Distribution


In 2016, the U.S. Sentencing Commission resolved this circuit conflict by amending Subsection (b)(3)(F) of § 2G2.2 to conform to the knowledge requirement followed in the Second, Fourth and Seventh Circuits.


On April 8, 2019, the Fifth Circuit in United States v. Lawrence re-addressed the relationship between Subsection (3)(b)(F) of § 2G2.2 and peer-to-peer file sharing in distribution cases. The court said:


“We have not specifically addressed how much a defendant must know to trigger the § 2G2.2(b)(3)(F) enhancement. The only time we have considered the amended guideline was in a recent unpublished opinion that affirmed an enhancement under § 2G2.2(b)(3)(F) because ‘there was evidence that the file sharing service . . . provide[d] alerts that material will be shared, and [the defendant] did not disable the sharing capability in his settings’ … In contrast, the record here is silent as to whether Lawrence ‘opted in’ to sharing his files on the Ares network.


“Lawrence contends that a defendant’s mere knowledge of the file sharing properties of a peer-to-peer network is not enough for the enhancement to apply. He insists that the government must establish that a defendant’s ‘peer-to-peer system stop swap was not on, or that there was no password to enter [a defendant’s] computer, or that some other individual actually downloaded [child pornography] from a defendant’s computer, or that a discussion occurred to agree to trade or share with someone.’ Lawrence argues that there must be ‘additional factors’ or ‘additional evidence that is suspicious . . . and demonstrates guilty knowledge’ beyond mere knowledge of how a peer-to-peer network functions. To support this contention, Lawrence cites several pre-amendment cases remanding § 2G2.2(b)(3)(F) enhancements when district courts did not make specific findings about the defendants’ knowledge of the file sharing properties of peer-to-peer networks.”


Mere Use of Peer to Peer Network


The Fifth Circuit concluded that Lawrence was correct with the argument that the mere use of a peer-to-peer network, standing alone, is not enough to trigger the two-level sentence enhancement  under § 2G2.2(b)(3)(F), but stopped short of imposing “a requirement of additional suspicious or circumstantial evidence to establish a defendant’s guilty knowledge.”


The Court, instead, said it would “leave those fact-specific determinations to the able district courts, which are well equipped and well versed in determining whether a defendant’s acts were done knowingly.”


Thus, in the wake of Lawrence, the law in the Fifth Circuit now pertaining to § 2G2.2(b)(3)(F) is that while the mere use of a peer-to-peer network is insufficient to trigger the guideline’s two level enhancement, the appeals court will nonetheless uphold a conviction if evidence is presented to show that the defendant “knew” the use of the network allowed others online to access his child pornography files.