United States v. Durham

618 F.3d 921, 2010 U.S. App. LEXIS 17841, 2010 WL 3341251
CourtCourt of Appeals for the Eighth Circuit
DecidedAugust 26, 2010
Docket09-2951
StatusPublished
Cited by70 cases

This text of 618 F.3d 921 (United States v. Durham) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Durham, 618 F.3d 921, 2010 U.S. App. LEXIS 17841, 2010 WL 3341251 (8th Cir. 2010).

Opinions

BYE, Circuit Judge.

Michael Durham appeals the sentence of 151 months’ imprisonment he received from the district court after pleading guilty to knowingly receiving child pornography in violation of 18 U.S.C. § 2252(a)(2). Durham contends the district court erred by applying a two-level enhancement for distributing child pornography pursuant to United States Sentencing Guidelines Manual (U.S.S.G.) [923]*923§ 2G2.2(b)(3)(F). He also challenges certain conditions of supervised release imposed by the district court. We affirm in part and reverse in part.

I

Michael Durham was charged in an eight-count indictment with, among other counts, knowingly receiving child pornography transported through interstate commerce by a computer in violation of 18 U.S.C. § 2252(a)(2). Pursuant to a plea agreement, Durham pleaded guilty to Count I and the remaining seven counts were dismissed at sentencing.

The Presentence Investigation Report (“PSR”) placed Durham in Criminal History Category I and recommended a base offense level of 22. The PSR also recommended several enhancements, including a two-level enhancement for distributing child pornography pursuant to U.S.S.G. § 2G2.2(b)(3)(F), to which Durham objected. The enhancements resulted in a total offense level of 34, after applying a three-level reduction for acceptance of responsibility.

At the sentencing hearing, the government called Detective A1 Barrios, a forensic examiner with the Springdale Police Department, to testify regarding the contents of Durham’s seized computer. Barrios described how Detective Mike Parks with the Fayetteville Police Department initially found Durham’s IP address offering to participate in the distribution of child pornography files on Limewire, a peer-to-peer file-sharing program. In his investigation, Parks did not actually download any of the files associated with Durham’s IP address, but he believed the file names were consistent with child pornography.

The officers determined the computer associated with the IP address in Parks’s investigation was located at Durham’s residence in Springdale, and they subsequently obtained a warrant to search the computer. After the officers executed the search warrant at Durham’s residence, he admitted to using Limewire to download music and child pornography files. Barrios testified Durham’s default Limewire settings had been changed to save and share files from different folders than would have automatically been set by the program. Barrios believed this indicated an action by Durham to change these settings, despite the multiple users on Durham’s family computer.

Barrios also testified that files downloaded by Durham were available for others to download through Limewire, as demonstrated by logs showing the available files obtained by Parks in his investigation. However, upon executing the search warrant, the officers discovered no child pornography files contained in Durham’s shared folder. Barrios indicated the files would have been in the shared folder at the time Parks conducted his investigation because Parks was able to view the file names available for download before they were removed. On cross-examination, Barrios conceded the only proof available demonstrated child pornography files were made available for upload, but there was no evidence of any files actually being uploaded from Durham’s computer.

Following Barrios’s testimony, Durham presented testimony from his brother, Casey Durham. Casey indicated he installed Limewire on Durham’s computer with Durham’s daughter and showed her how to use the program to download music. Casey also testified Durham was not present when Limewire was installed, nor was he knowledgeable about the program. According to Casey, he set up the program according to the default settings, which [924]*924automatically enables file-sharing with other Limewire users.

After hearing the parties’ proffered testimony and arguments, the district court concluded there was no evidence of possession with intent to distribute, but it held the distribution enhancement nonetheless applied due to Durham’s use of Limewire. Based on the testimony, the court determined Durham was “very knowledgeable” about Limewire’s downloading capabilities, which, in turn, lead the court to conclude he was also knowledgeable about Lime-wire’s uploading capabilities.

The court acknowledged there was no statement from Durham demonstrating he knew others could access his materials; however, it found the lack of this direct evidence was not dispositive. Under the preponderance of the evidence standard, the court concluded the two-level enhancement for distribution applied. Durham’s counsel objected and instead argued he should have received a two-level reduction for not intending to traffic in, or distribute, child pornography under U.S.S.G. § 2G2.2(b)(l). In response, the court held that provision did not apply because Durham utilized Limewire, rather than receiving child pornography through another program that did not feature automatic file-sharing.

Based on the court’s ruling, the applicable Guidelines range was 151-188 months. The court ultimately imposed a sentence of 151 months’ imprisonment and 10 years of supervised release. It then imposed seven special conditions of supervised release, including a condition allowing the probation office to track Durham’s whereabouts through any means the office deems acceptable, a condition placing limitations on Durham’s internet access, and a condition limiting Durham’s contact with minors. Durham’s counsel only objected to the tracking condition. He appeals the court’s imposition of these conditions, as well as its application of the distribution enhancement.

II

“We review the district court’s sentencing decision for an abuse of discretion, and our review is limited to determining whether the sentence is unreasonable.” United States v. Blankenship, 552 F.3d 703, 704 (8th Cir.2009). We first ensure the district court committed no significant procedural error, such as improperly calculating the Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence. United States v. Gonzalez, 573 F.3d 600, 605 (8th Cir.2009). We review the district court’s application of the Guidelines de novo, and its factual findings for clear error. Blankenship, 552 F.3d at 704.

A. The Distribution Enhancement

Durham first contends the district court committed procedural error by applying a two-level enhancement for distribution of child pornography pursuant to U.S.S.G. § 2G2.2(b)(3)(F), and alternatively it should have imposed a two-level reduction under § 2G2.2(b)(l). Unlike prior cases considered by this court, Durham asserts he provided no admission evincing his knowledge that he was distributing child pornography over the file-sharing network.

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Bluebook (online)
618 F.3d 921, 2010 U.S. App. LEXIS 17841, 2010 WL 3341251, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-durham-ca8-2010.