Longer Child Porn Sentence Requires Proof, Circuit Says

, New York Law Journal

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The sentencing enhancement for distributing child pornography cannot be applied unless a judge finds the defendant knew his computer file-sharing program made the pornography available to others, a federal court held Friday.

Clarifying the standard for a two-level enhancement under the federal sentencing guidelines, the U.S. Court of Appeals for the Second Circuit vacated the sentence of a Vermont man who claimed he didn't know his "peer-to-peer" or "P2P" software would make files available to other viewers of child pornography.

Department of Homeland Security agents who raided the home of self-described "survivalist" Dennis Wade Baldwin in 2012 found thousands of images of child pornography on his two computers as well as a cache of weapons. Baldwin said he had been "stockpiling" guns "for when the world goes to hell."

Baldwin pleaded guilty to possession of child pornography as well as a gun charge and, at sentencing in 2013, U.S. District Judge William Sessions in Vermont assessed the two-level enhancement. Baldwin was ordered to prison for seven years and three months—the low end of a guidelines range—with a high end of nine years.

Baldwin's attorney, Assistant Federal Public Defender Steven Barth, had argued against the enhancement and asked the judge to impose a prison term of three years and six months.

But Assistant U.S. Attorney Nancy Creswell argued that a different guidelines range applied, saying Baldwin's crime warranted a sentence ranging from nine years to 11 years and three months. She told the court that Baldwin knew what he was doing, that he learned about peer-to-peer software on the Internet and clearly downloaded it himself.

"It didn't get on his computer by accident … and there isn't anyone else—certainly his mother didn't put it on his two computers," she said in a transcript.

Sessions told the lawyers he was imposing the enhancement under §2G2.2(b)(3)(F) for obvious reasons.

"[H]e should very well have known that when you have a peer-to-peer sharing software system, that means that you can get images from others and they can get images from you," the judge said. "It's almost self-evident at that particular point."

But on Friday, Judges Jose Cabranes (See Profile), Robert Sack (See Profile) and Gerard Lynch (See Profile) said finding that something was "self-evident" was not enough. The judges articulated the knowledge required for a defendant to merit the enhancement. The case is United States v. Baldwin, 13-163-cr.

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