Eleventh Circuit: Use of File Sharing Software to Download Child Porn Not Sufficient to Trigger Five-Level Sentencing Enhancement

Eleventh Circuit: Use of File Sharing Software to Download Child Porn Not Sufficient to Trigger Five-Level Sentencing Enhancement

In two cases in January, the Eleventh Circuit addressed whether the use of peer to peer file-sharing software to obtain child pornography from other users in a way that permitted other users to obtain child porn from their respective shared folders supports the application of a five-level sentencing enhancement for distribution for receipt of a thing of value.

In United States v. Vadnais and United States v. Spriggs, the Eleventh Circuit held that the use of peer-to-peer file sharing software to download pornography was insufficient to warrant a five-level sentencing enhancement pursuant to U.S.S.G. § 2G2.2(b)(3)(B)—which applies to the “distribution of illicit images for the receipt, or expectation of receipt, of a non-pecuniary thing of value.”

The court of appeals reasoned that there had to be some evidence that the defendants knew or expected to receive something of value in return for sharing files to warrant the five-level enhancement pursuant to U.S.S.G. § 2G2.2(b)(3)(B). The defendants’ failure to turn off the file-sharing component of the software was not enough to prove that they expected to receive something in return for sharing the files. The court of appeals held that the defendants were subject to a two-level sentencing enhancement for distributing the illicit material, pursuant to U.S.S.G. § 2G2.2(b)(3)(F).
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