In United States v. Creel, the Eleventh Circuit Court of Appeals held that under the federal sentencing guidelines a district court can enhance a defendant’s sentence for distribution of child pornography, even if the person was unaware that others could access his files through a peer-to-peer file sharing network.
The defendant downloaded child pornography through a peer-to-peer file sharing program. The program creates a shared folder on a user’s computer that is used as the default location for files downloaded from the network. The program then allows other users on the network to download any files that are contained in the user’s shared folder. The defendant was indicted by a grand jury after police were able to download child pornography files from his shared folder through the use of the file sharing program.
The defendant entered a plea to the charges but argued that he should not be subject to the sentencing enhancement for distribution. He argued that the enhancement should not apply to him because he did not know other users could access the files stored on his computer.
The district court judge held that the distribution enhancement applied. On appeal, the Eleventh Circuit affirmed the district court. Judge Pryor, who wrote for the panel, noted that the distribution enhancement does not include a knowledge requirement.
Other Circuit Courts are split on this issue. The Fifth and Tenth Circuits, like the Eleventh, have held that the distribution enhancement can apply in this situation. However, the Second, Fourth, Seventh, and Eighth Circuits disagree. The Eleventh Circuit’s opinion acknowledged the circuit split, but stated that the reasoning of the other circuits is inconsistent with the commentary to the sentencing guidelines. Considering the considerable split among the federal circuits, it is possible that this issue may reach the Supreme Court.
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