United States Court of Appeals 

For the First Circuit 

No. 17-1577 

UNITED STATES OF AMERICA, 

Appellee, 

v. 

RICARDO MONTAÑEZ-QUIÑONES, 

Defendant, Appellant. 

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF PUERTO RICO 

[Hon. Carmen Consuelo Cerezo, U.S. District Judge] 

Before 

Thompson, Selya, and Lipez, 

Circuit Judges. 

Jane Elizabeth Lee for appellant. 

Julia M. Meconiates, Assistant United States Attorney, with 

whom Rosa Emilia Rodriguez-Velez, United States Attorney and 

Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief, 

Appellate Division, were on brief, for appellee. 

December 21, 2018 
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SELYA, Circuit Judge. Defendant-appellant Ricardo 

Montañez-Quiñones seeks to set aside his 109-month sentence for 

possession of child pornography. In support, he both reproves the 

government for allegedly violating the plea agreement through its 

overzealous advocacy at sentencing and reproves the district court 

for enhancing his offense level through an allegedly erroneous 

finding that he knowingly distributed child pornography. 

Concluding, as we do, that neither claim of error withstands 

scrutiny, we affirm the challenged sentence. 

I. BACKGROUND 

We briefly rehearse the facts and travel of the case. 

Because this appeal follows a guilty plea, we draw our account 

from the plea agreement, the undisputed portions of the presentence investigation report (PSI Report), and the transcripts of 

the change of plea and sentencing hearings. See United States v. 

Coleman, 884 F.3d 67, 69 (1st Cir. 2018). 

On September 20, 2015, as part of an investigation of 

pornography sharing on Ares (a peer-to-peer file-sharing network), 

a computer forensic laboratory associated with the Department of 

Homeland Security (DHS) successfully downloaded a seven-minute 

video that depicted a sexual encounter between a young girl 

(approximately eight to ten years of age) and an adult man. DHS 

agents traced the file to the residence of the defendant in Gurabo, 

Puerto Rico, and executed a search warrant for that address. The 
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agents seized two devices: a laptop computer and a desktop 

computer. 

The seized computers collectively housed 1,072 child sex 

abuse images. Those images showed boys and girls between four and 

fourteen years of age performing oral sex on adult men and being 

vaginally and anally penetrated by adult men. The agents' analysis 

also revealed an additional 3,613 child sex abuse files, which had 

either been downloaded and erased or were incomplete downloads, 89 

child sex abuse files being shared on Ares, and at least 48 search 

terms related to child sex abuse. 

In due course, a federal grand jury sitting in the 

District of Puerto Rico handed up an indictment charging the 

defendant with two counts of transportation of child pornography 

and one count of possession of child pornography (including images 

of prepubescent minors engaged in sexually explicit conduct). 18 

U.S.C. § 2252A(a)(5)(B), (b)(2). Although the defendant 

originally maintained his innocence, he eventually executed a nonbinding plea agreement, see Fed. R. Crim. P. 11(c)(1)(B), and 

entered a guilty plea to the charge of possession of child 

pornography. In exchange for the defendant's plea, the government 

agreed to dismiss the remaining two counts. 

In the plea agreement (the Agreement), the parties 

agreed to a total offense level of 28, which included a two-level 

enhancement for distribution, see USSG §2G2.2(b)(3)(F), and a 
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three-level enhancement premised on a stipulation that the offense 

of conviction involved between 150 and 300 offending images, see 

USSG §2G2.2(b)(7)(B). These stipulations were not intended to 

bind the sentencing court, see Fed. R. Crim. P. 11(c)(1)(B), and 

the Agreement contained no stipulation as to the defendant's 

criminal history category (CHC). The parties nonetheless agreed 

that, with a CHC of I, the guideline sentencing range would be 78-

97 months; that the defendant could argue for a sentence at the 

low end of that hypothetical range; and that the government could 

argue for a sentence up to 87 months (the mid-point of the 

hypothetical range).1

The probation officer offered a slightly different 

assessment. The PSI Report calculated the defendant's total 

offense level at 30 based on a finding that the defendant possessed 

600 or more offending images. With a CHC of I, the applicable 

guideline sentencing range would be 97-121 months. In his 

objections to the PSI Report, the defendant took issue with its 

inclusion of the two-level enhancement for knowing distribution. 

Although the same enhancement had been contemplated by the 

Agreement, the defendant argued that there was a critical 

distinction: since executing the Agreement, USSG §2G2.2(b)(3)(F) 

 1 The parties agree that the government remained bound to this 

ceiling even if the district court — as happened here — determined 

that a more onerous guideline sentencing range applied. 
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had been amended to include a mens rea requirement. See USSG App. 

C, Amend. 801 (effective Nov. 1, 2016). The defendant argued that 

there was too little evidence to satisfy this new requirement. 

Specifically, he asserted that in order to prove knowing 

distribution, the government was obliged to introduce "evidence 

concerning the operation of the specific file sharing program used 

in the present case" and that it had failed to do so. 

The district court was not persuaded that so precise an 

evidentiary showing was necessary to ground the enhancement. It 

overruled the defendant's objection based on its determination 

that "the evidence on record showed that defendant knew of the 

file-sharing properties of the 'Ares' program." In this regard, 

the court noted that the defendant was a "sophisticated and longtime computer user." This background, which included the 

defendant's degrees in computer science and computer networks and 

his statements that he was skilled in computers and would like to 

pursue an advanced degree in computer networks, was sufficient to 

infer the requisite knowledge. To cinch matters, the defendant 

had stored a portion of his downloaded child sex abuse files to a 

"shared" folder, indicating that he had curated "the particular 

contraband that he wanted to exchange through the 'Ares' filesharing program." 

After the court upheld the propriety of the knowing 

distribution enhancement, the disposition hearing proceeded. In 
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accordance with the Agreement, the defendant argued for a sentence 

of 78 months (the low end of the hypothetical guideline range 

stipulated to by the parties). The government argued for a 

sentence of 87 months (the mid-point of the hypothetical range). 

In support of his argument, the defendant emphasized his difficult 

childhood and a history of abuse. The government countered that 

the defendant's conduct had helped to support an industry that 

"feeds on the sexual abuse and torture of children." 

When all was said and done, the district court refused 

to accept the parties' stipulated guideline range. Instead, it 

embraced the guideline calculations contained in the PSI Report, 

which included a higher offense level that added five levels for 

possession of 600 or more offending images. Using a total offense 

level of 30 and a CHC of I, the court adopted a guideline sentencing 

range of 97-121 months. It proceeded to sentence the defendant to 

a mid-range 109-month term of immurement. This timely appeal 

ensued. 

II. ANALYSIS 

In this venue, the defendant attacks his sentence on two 

fronts. First, he contends that the government breached the terms 

of the Agreement by failing to advocate for the bargained-for 

sentence. Second, he contends that the district court's finding 

that he knowingly distributed child pornography was in error. We 

examine each contention in turn. 
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A. Alleged Breach of Plea Agreement. 

The defendant begins by asseverating that statements 

made by the prosecutor during the disposition hearing, along with 

statements that the government failed to make, comprised a breach 

of the Agreement. This asseveration breaks new ground, as the 

defendant failed to mount this claim of error below. Consequently, 

our review is only for plain error — "a formidable standard of 

appellate review." United States v. Saxena, 229 F.3d 1, 5 (1st 

Cir. 2000); see United States v. Almonte-Nuñez, 771 F.3d 84, 89 

(1st Cir. 2014) (citing Puckett v. United States, 556 U.S. 129, 

143 (2009)). Under this standard, an appellant bears the burden 

of showing "(1) that an error occurred (2) which was clear or 

obvious and which not only (3) affected the defendant's substantial 

rights, but also (4) seriously impaired the fairness, integrity, 

or public reputation of judicial proceedings." United States v. 

Duarte, 246 F.3d 56, 60 (1st Cir. 2001). Within this rubric, an 

appellant's substantial rights are deemed to be affected only when 

an error "likely affected the outcome of the proceedings." 

Almonte-Nuñez, 771 F.3d at 89. 

It cannot be gainsaid that "[a] plea agreement is a 

binding promise by the government and is an inducement for the 

guilty plea." United States v. Gonczy, 357 F.3d 50, 53 (1st Cir. 

2004) (citing Santobello v. New York, 404 U.S. 257, 262 (1971)). 

It follows that "a failure to support that promise is a breach of 
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the plea agreement, whether done deliberately or not." Id. 

Because a defendant waives a panoply of constitutional rights by 

entering into a plea agreement, we hold the government to "the 

most meticulous standards of both promise and performance." 

Correale v. United States, 479 F.2d 944, 947 (1st Cir. 1973). 

Simply providing "lip service" to these solemn obligations will 

not suffice. Saxena, 229 F.3d at 6. 

Before us, the defendant asserts that the government 

violated the Agreement because it did not assiduously advocate for 

the bargained-for sentence and made a bad situation worse by 

misrepresenting the number of offending images stipulated in the 

Agreement. Some further facts are needed to put the assertion 

into perspective. 

The government had agreed to recommend an incarceration 

sentence of no more than 87 months. At the disposition hearing 

the prosecutor stated, consistent with this agreement, on no fewer 

than five occasions that the government was recommending a sentence 

of 87 months. The defendant views these repeated recommendations 

as hollow: he points out that the prosecutor did not mention the 

total offense level of 28 referenced in the Agreement but, rather, 

stated (incorrectly) that the parties had stipulated to 300 to 600 

offending images. Furthermore, the defendant claims that the 

prosecutor "excoriated [him] and condemned his conduct in the 

strongest terms," thereby nullifying whatever "lip service" that 
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the prosecutor might have given to the bargained-for sentencing 

recommendation. 

We start our consideration of the defendant's argument 

with first principles: "[n]o magic formula exists for a prosecutor 

to comply with the agreed-upon sentence recommendation." Gonczy, 

357 F.3d at 54. Having repeatedly stated the government's 

sentencing recommendation of 87 months to the court, the prosecutor 

was not required to discuss any specific aspects of the 

government's thinking. In assessing whether the government 

breached its agreement to argue for the bargained-for sentence, we 

look instead to whether its "overall conduct" was "reasonably 

consistent with making such a recommendation, rather than the 

reverse." Id. (quoting United States v. Canada, 960 F.2d 263, 268 

(1st Cir. 1992)); see Almonte-Nuñez, 771 F.3d at 91 ("We consider 

the totality of the circumstances in determining whether a 

prosecutor engaged in impermissible tactics."). 

To be sure, the defendant perceives an inconsistency 

between the prosecutor's limited discussion of the government's 

sentencing recommendation and the strong language that the 

prosecutor used to describe the nature of the defendant's crime. 

We acknowledge, of course, that "it is possible for a prosecutor 

to undercut a plea agreement while paying lip service to its 

covenants." Almonte-Nuñez, 771 F.3d at 90-91. For example, we 

have found (albeit under a more sympathetic standard of review) 
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that such a breach occurred when the government never affirmatively 

recommended the agreed-upon sentence, see Canada, 960 F.2d at 268; 

when the government effectively argued against a sentencing 

reduction in contravention of the plea agreement, see United States 

v. Clark, 55 F.3d 9, 12-13 (1st Cir. 1995); and when the 

government's zealous advocacy belied its agreement to recommend 

the low end of the applicable guideline sentencing range, see 

Gonczy, 357 F.3d at 54. Those cases, though, are at a far remove 

from the case at hand. 

In this instance, the prosecutor repeatedly stated the 

government's recommendation of 87 months in accordance with the 

Agreement. See Saxena, 229 F.3d at 7 (finding no breach where 

prosecutor "resolutely stood by the bottom-line recommendation 

that the government had committed to make"); United States v. 

Irizarry-Rosario, 903 F.3d 151, 155 (1st Cir. 2018) (finding no 

breach where explanation of sentencing recommendation was 

"interspersed with reaffirmations of the . . . sentencing 

recommendation"). While the prosecutor's statements to this 

effect were simple and straightforward, a prosecutor is not obliged 

to present an agreed recommendation either with ruffles and 

flourishes or "with any particular degree of enthusiasm." Canada, 

960 F.2d at 270. Nor is the defendant entitled "to have the 

government sugarcoat the facts." Almonte-Nuñez, 771 F.3d at 91. 
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The defendant's attempt to find a breach of the plea 

agreement in the prosecutor's unflattering narrative about the 

heinous nature of the defendant's crime is unpersuasive. This 

argument overlooks the salient fact that, under the Agreement, the 

government had a right to advocate for a sentence higher than the 

sentence that the defendant was seeking. Thus, the prosecutor had 

a right (indeed, a duty) to explain to the court why the higher 

sentence that it was urging was more appropriate. Almonte-Nuñez 

illustrates this point. There, we held that where a plea agreement 

entitled the prosecutor to argue for the high end of a guideline 

range while the defendant argued for the low end of that range, 

the prosecutor "was within fair territory in emphasizing facts 

that made a sentence at the low end of that [range] inappropriate." 

Id. 

So it is here. The prosecutor had every right to 

highlight the serious nature of the offense and its impact on 

society in order to advocate for a sentence above the sentence 

requested by the defendant, as well as to demonstrate the 

unsuitable nature of the defendant's request. To this end, the 

prosecutor told the court that the conduct underlying the 

conviction was such as to "feed[] a terrible industry" supported 

by "the sexual abuse and torture of children," and that "the 

defendant chose to pursue his own sexual gratification with 

flagrant disregard for the welfare of thousands of minor children." 
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Such language, though harsh, coheres both with the government's 

decision to charge the defendant with this serious crime and with 

its reservation of the right to argue for an 87-month sentence. 

We hold, therefore, that the prosecutor's statements at sentencing 

did not contradict any terms of the Agreement, nor did they 

"'gratuitously offer[] added detail garbed in implicit advocacy' 

that might have led the district court to rethink the government's 

recommendation." Irizarry-Rosario, 903 F.3d at 155 (quoting 

United States v. Miranda-Martinez, 790 F.3d 270, 275 (1st Cir. 

2015)). When the parties agree that a defendant may argue for a 

particular sentence while the government may argue for a somewhat 

stiffer sentence, the government is not constrained to pull its 

punches when arguing for the stiffer sentence. 

The defendant has a fallback position. He says that the 

government breached the Agreement when it "advocated for a higher 

number of images than stipulated in the plea agreement." The 

government concedes that the prosecutor misstated the number of 

images stipulated in the Agreement but maintains that this was a 

slip of the tongue. Everything in the record points toward a 

finding of inadvertence. At the disposition hearing, there was no 

contemporaneous objection and, indeed, none of the parties appear 

to have noticed the misstatement when it was made. The prosecutor 

proceeded to recommend a sentence of 87 months — a recommendation 

derived from a hypothetical guideline sentencing range determined 
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in accordance with the number of images stipulated in the 

Agreement. The bottom line, then, is that "[t]his is not a record 

in which the misstep conveyed a message that the ultimate 

recommendation was insincere." United States v. OppenheimerTorres, 806 F.3d 1, 4 (1st Cir. 2015). 

Nor does it appear that the misstatement in any way 

affected the outcome of the proceedings. The record is bereft of 

any basis from which we might reasonably infer that the district 

court was misled as to the number of images stipulated to by the 

parties. That number was correctly described both in the Agreement 

and in the PSI Report — and those documents were before the 

district court at sentencing. And in any event, the court itself 

had independently determined that the offense conduct involved 600 

or more images. Given the totality of the circumstances, we find 

no prejudice attendant to the prosecutor's lapses linguae and, 

thus, no merit in the defendant's claim that this misstatement 

heralded a breach of the plea agreement. 

B. Knowing Distribution. 

This brings us to the defendant's plaint that the 

district court erred when it included a two-level enhancement for 

knowing distribution in its calculation of the guideline 

sentencing range. This plaint has a narrow focus: while the 

defendant does not dispute that distribution occurred, he alleges 
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that the government failed to provide evidence that he knew of the 

file-sharing properties of the program. 

It is elementary that "the government bears the burden 

of proving sentence-enhancing factors by a preponderance of the 

evidence." United States v. Nuñez, 852 F.3d 141, 144 (1st Cir. 

2017). We apply a clear error standard of review to the sentencing 

court's factfinding — a standard that extends to any findings based 

on inferences drawn from discerned facts. See id. This is a 

demanding standard, satisfied only if, "upon whole-record-review, 

an inquiring court 'form[s] a strong, unyielding belief that a 

mistake has been made.'" United States v. Cintrón-Echautegui, 604 

F.3d 1, 6 (1st Cir. 2010) (alteration in original) (quoting 

Cumpiano v. Banco Santander P.R., 902 F.2d 148, 152 (1st Cir. 

1990)).2 

Section 2G2.2(b)(3)(F) of the sentencing guidelines was 

amended, effective as of November 2016, to limit the two-level 

enhancement to possessors of child pornography who "knowingly 

 2 The dissent suggests that deference to the district court's 

factual findings may be lessened here because we are assessing the 

district court's logic on a paper record, which invites no weighing 

of credibility. See post at 31. What the dissent calls "logic" 

is nothing more or less than the drawing of inferences from the 

facts of record and, thus, the dissent's suggestion lacks force. 

See RCI Ne. Servs. Div. v. Bos. Edison Co., 822 F.2d 199, 202 (1st 

Cir. 1987) ("[F]indings of fact do not forfeit 'clearly erroneous' 

deference merely because they stem from a paper record."); see 

also Limone v. United States, 579 F.3d 79, 94 (1st Cir. 2009) ("The 

application of clear-error review to findings drawn from a paper 

record has long been the practice in this circuit."). 
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engaged in distribution." In incorporating a mens rea requirement, 

the Sentencing Commission resolved a circuit split and "generally 

adopt[ed] the approach of the Second, Fourth, and Seventh 

Circuits." USSG Supp. to App. C, Amend. 801 at 145 (2016); see 

United States v. Baldwin, 743 F.3d 357, 361 (2d Cir. 2014) (per 

curiam); United States v. Robinson, 714 F.3d 466, 469-70 (7th Cir. 

2013); United States v. Layton, 564 F.3d 330, 335 (4th Cir. 2009). 

Even as amended, though, the enhancement does not require proof 

that the defendant intended to distribute child pornography — "as 

long as he had knowledge that by using a peer-to-peer file-sharing 

program, his child pornography was made accessible to others." 

United States v. Cates, 897 F.3d 349, 359 (1st Cir. 2018) (emphasis 

in original). In all events, "the government need not prove 

knowledge by direct evidence, but may prove knowledge by 

circumstantial evidence." Id. Viewed against this backdrop, the 

defendant's argument that the government failed to provide "some 

evidence" that he affirmatively knew of the file-sharing 

properties of the application "confuses a lack of direct evidence 

with a lack of evidence." Id. 

Cates is instructive. There, we determined that the 

district court drew a reasonable inference that the defendant knew 

of the file-sharing properties of a peer-to-peer network when it 

relied on evidence that the defendant was "relatively 

sophisticated in computer matters" and had demonstrated 
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familiarity with the program's file-sharing properties. Id. at 

359-60. The findings in Cates, albeit based on a stronger 

evidentiary predicate, are on the same order as those of the court 

below, which drew an equally reasonable inference of knowledge 

based on uncontradicted evidence that the defendant was a 

"sophisticated and long-time computer user" who had selected from 

thousands of downloaded files a limited number to share through 

the file-sharing program. 

On this record, the sentencing court was entitled to 

draw the plausible inferences that led to a finding of knowledge. 

Inferences based on circumstantial evidence "need not be compelled 

but, rather, need only be plausible." See Nuñez, 852 F.3d at 146. 

The court below reasonably could infer that the defendant was a 

sophisticated computer user based on evidence that he had acquired 

two degrees in computer science and computer networks. Similarly, 

the court reasonably could infer that the defendant selected a 

limited number of child sex abuse files to be shared on Ares. That 

conclusion was based on evidence that the defendant had downloaded 

thousands of child sex abuse files but that he shared only 74 and 

15 child sex abuse files, respectively, on each of his two 

computers. 

Surely, other plausible inferences could be drawn from 

this evidence. But that is not the test: the decisive 

consideration is that, on the record before it, the court below 
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plausibly could infer that the disparity between files downloaded 

and files shared was a result of the defendant's desire to share 

only some files. And it is apodictic that "[w]here the raw facts 

are susceptible to competing inferences," a district court's 

"choice between those inferences cannot be clearly erroneous." 

United States v. McCormick, 773 F.3d 357, 359 (1st Cir. 2014). 

The defendant challenges the sufficiency of these 

findings. He submits that the government was required to furnish 

evidence concerning the operation of the particular file-sharing 

program at issue. We previously have called such an argument a 

"red herring," holding that the sentencing court drew a reasonable 

inference of knowledge without the benefit of evidence that files 

downloaded through the program were automatically accessible for 

others to download. Id. The argument has not changed its color 

in the short time that has elapsed since Cates was decided. 

Let us be perfectly clear. We do not hold that such 

evidence is irrelevant to the issue of knowing distribution. 

Simply using a program (like Ares) that automatically steers 

downloaded files into a shared folder may well be insufficient, 

standing alone, to support an inference of knowledge, particularly 

if the government has not provided evidence that the defendant 

knew of this mechanism or otherwise possessed the technological 

proficiency to understand that it was in place. See, e.g., United 

States v. Carroll, 886 F.3d 1347, 1354 & n.4 (11th Cir. 2018) 
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(holding that government was required to "put forth evidence that 

[defendant] had some advanced technological proficiency" to 

support finding of knowing distribution by means of file-sharing 

program that did not notify users of automatic sharing); Robinson, 

714 F.3d at 470 (concluding that computer novice who "had never 

seen a file-sharing program before might not realize" that "shared 

files are accessible automatically to other persons online"). 

Conversely, concerns about automatic file-sharing have been 

allayed where — as in Cates — courts have found that the defendant 

possessed "advanced computer knowledge" or used the program in a 

manner that indicated an understanding of how the program worked. 

See United States v. Alpizar, ___ F.3d ___, ___ (11th Cir. 2018) 

[No. 16-15170, slip op. at 6]; United States v. Nordin, 701 F. 

App'x 545, 546 (8th Cir. 2017) (per curiam). 

This case is of the latter stripe. The court below 

reasonably inferred knowledge both from its well-supported finding 

that the defendant was "a sophisticated and long-time computer 

user" and from the defendant's storage of select files in his 

shared folder. No more was exigible to render the court's findings 

adequate as a foundation for a reasonable inference of knowledge, 

regardless of whether downloaded files were automatically 

available for distribution to others. Accordingly, we discern no 

clear error in the court's imposition of a two-level enhancement 

for knowing distribution of child pornography. 
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III. CONCLUSION 

We need go no further. For the reasons elucidated above, 

the defendant's sentence is 

Affirmed. 

— Separate Opinion Follows — 
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LIPEZ, Circuit Judge, concurring in part and dissenting 

in part. Although I concur with the majority's conclusion 

regarding the government's alleged violation of the plea 

agreement, I respectfully disagree with its conclusion regarding 

the sentencing enhancement that was applied to increase 

appellant's sentence. That enhancement is not supported by the 

record before the district court. Therefore, I would hold that 

the court clearly erred in determining that the government proved 

appellant's knowledge of distribution by a preponderance of the 

evidence. Before explaining my reasoning, I must provide some 

context for my assessment of the enhancement and augment the 

majority's description of the factual record. 

I. 

A. Peer-to-Peer File-Sharing Programs 

In recent years, "'peer-to-peer' . . . file-sharing via 

the Internet has resulted in significant changes in the manner in 

which [child pornography] offenses are committed." U.S. 

Sentencing Comm'n, Report to the Congress: Federal Child 

Pornography Offenses (Dec. 2012), at 5. Peer-to-peer file-sharing 

networks "'allow[] users to download files from the computers of 

other users. Unlike other means of acquiring files over the 

Internet, such as in a chat room or using e-mail[,] . . . no 

personalized contact is required between the provider and 

receiver.'" United States v. R.V., 157 F. Supp. 3d 207, 235 
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(E.D.N.Y. 2016) (quoting Maggie Meuthing, Inactive Distribution: 

How the Federal Sentencing Guidelines for Distribution of Child 

Pornography Fail to Effectively Account for Peer-to-Peer Networks, 

73 Ohio St. L.J. 1485, 1488 (2012)). In addition to allowing a 

user to download files, file-sharing programs also make files on 

a user's computer accessible for download by other users. Notably, 

[a] crucial aspect of peer-to-peer file-sharing is that 

the default setting for these networks is that 

downloaded files are placed in the user's "shared" 

folder, which allows others in the network to access the 

files. A user must affirmatively change his network 

setting to disable this sharing feature. 

Id. (quoting Audrey Rogers, From Peer-to-Peer Networks to Cloud 

Computing: How Technology is Redefining Child Pornography Laws, 87 

St. John's L. Rev. 1013, 1031 (2013)). 

When first downloaded, Ares, the file-sharing program 

used by appellant, "sets up a shared folder on the computer where, 

by default, it automatically places all subsequent [Ares] 

downloads. Once a file is [automatically] placed in the shared 

folder, it is immediately available for further dissemination." 

United States v. Carroll, 886 F.3d 1347, 1350 (11th Cir. 2018). 

That is, "[u]nless an Ares user changes the default settings or 

deliberately moves files out of the shared folder, downloaded files 

[from Ares] will remain freely accessible to anyone else on the 

Ares network." Id. 
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B. The "Knowing" Distribution Guideline Enhancement 

In general, due to the pervasive use of file-sharing 

programs to access child pornography, the sentencing guideline 

enhancements for the non-commercial distribution of child 

pornography may be applied to the majority of non-production child 

pornography offenders. See U.S. Sentencing Comm'n, Report to the 

Congress, at 149-50, 154-55. Until the end of 2016, the sentencing 

guidelines provided for a two-level enhancement in child 

pornography cases "[i]f the offense involved . . . [d]istribution." 

Compare U.S. Sentencing Guidelines Manual § 2G2.2(b)(3)(F) with 

U.S. Sentencing Guidelines Manual § 2G2.2(b)(3)(F) (as amended 

Nov. 2016).3 Courts generally agreed that a user of a peer-topeer file-sharing network need not take affirmative steps to share 

files with other users in order to have "distributed" child 

pornography. See, e.g., United States v. Chiaradio, 684 F.3d 265, 

282 (1st Cir. 2012) (accepting the analogy of a peer-to-peer filesharing program user to a self-serve gas station owner in holding 

that a person may "passive[ly]" distribute files by making them 

available for download by other users). 

However, the circuits were split on whether the 

enhancement required some mens rea despite the absence of language 

 3 If the offense involves distribution in exchange for any 

type of payment or distribution to a minor, the guidelines provide 

for a greater enhancement. See U.S.S.G. § 2G2.2(b)(3)(A)-(E). 
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to that effect in the guideline. Several circuits held that the 

enhancement required evidence that a defendant knew about the filesharing properties of the program he was using to obtain child 

pornography. See, e.g., United States v. Baldwin, 743 F.3d 357, 

361 (2d Cir. 2014); United States v. Robinson, 714 F.3d 466, 468 

(7th Cir. 2013); United States v. Layton, 564 F.3d 330, 335 (4th 

Cir. 2009). Other circuits held that there was no knowledge 

requirement, or that knowledge could be presumed from a defendant's 

use of a file-sharing program. See, e.g., United States v. 

Abbring, 788 F.3d 565, 567 (6th Cir. 2015); United States v. Creel, 

783 F.3d 1357, 1360 (11th Cir. 2015); United States v. Baker, 742 

F.3d 618, 621 (5th Cir. 2014); United States v. Ray, 704 F.3d 1307, 

1311-12 (10th Cir. 2013); United States v. Dodd, 598 F.3d 449, 

451-52 (8th Cir. 2010). 

In late 2016, the guideline enhancement was amended to 

specify that it applied only where a defendant "knowingly engaged 

in distribution." U.S.S.G. § 2G2.2(b)(3)(F) (emphasis added). In 

amending the guideline, the Sentencing Commission noted that some 

file-sharing programs "employ a default file-sharing setting" and 

that a user has to "'opt out' of automatically sharing files by 

changing the default setting to limit which, if any, files are 

available for sharing." U.S.S.G. App. C, Amend. 801 (eff. Nov. 1, 

2016). The Commission acknowledged the existing uncertainty 

regarding mens rea and stated that it was "generally adopt[ing] 
- 24 - 

the approach of the Second, Fourth, and Seventh Circuits," which 

all required evidence of a defendant's knowledge of a program's 

file-sharing properties. Id. 

In codifying this approach, the Commission rejected both 

the approach of those circuits that did not require evidence of 

knowledge and the approach of those circuits that had held that 

knowledge of a program's file-sharing properties "may be inferred 

from the fact that a file-sharing program was used, absent 

'concrete evidence' of ignorance," because "the whole point of a 

file-sharing program is to share." Id. (quoting Dodd, 598 F.3d at 

452, and Abbring, 788 F.3d at 567). After the amendment, then, 

application of the enhancement requires specific evidence of a 

defendant's "knowledge that by using a peer-to-peer file-sharing 

program, his child pornography was made accessible to others." 

United States v. Cates, 897 F.3d 349, 359 (1st Cir. 2018). The 

simple fact that a defendant used a file-sharing program does not 

constitute evidence of knowledge.4 In other words, it is not 

enough for the government to assert that a defendant "was using a 

peer-to-peer file sharing program and 'that is what it is.'" 

Carroll, 886 F.3d at 1353. 

 4 To the extent knowledge can be established by evidence of 

recklessness, the district court did not rely on this theory, and, 

in any event, my analysis would not differ if the government was 

pressing a recklessness theory. 
- 25 - 

The question then becomes what constitutes evidence of 

knowledge to support the enhancement. In Cates, we described a 

substantial amount of evidence of knowledge. Specifically, there 

was evidence that the defendant (1) had used a file-sharing program 

to download child pornography for three years; (2) had created a 

"specialized configuration" "by which files downloaded from [the 

file-sharing program] would bypass his master hard drive and be 

saved automatically to the 'sharing folder' housed on a subservient 

drive"; and (3) had, in his interview with authorities, 

"demonstrated considerable familiarity with [the program]'s 

file-sharing properties" and acknowledged that he could turn off 

the program's default setting of automatic sharing. Cates, 897 

F.3d at 359. 

The Eleventh Circuit's recent treatment of the amended 

guideline in relation to the Ares program is also instructive. In 

Carroll, the court reversed a distribution conviction "because the 

government failed to put forth any evidence that [the defendant] 

knew downloaded files were automatically placed into a shared 

folder accessible to the Ares peer-to-peer network." Carroll, 886 

F.3d at 1349 (emphasis added). The only proffered evidence of 

knowledge in Carroll was the defendant's use of the Ares program 

and the presence of files automatically being placed into, and 

shared from, the Ares-created folder. Id. at 1353. The court 

considered this to be no evidence at all of the defendant's 
- 26 - 

knowledge. In a subsequent case affirming an application of the 

knowing distribution enhancement, the Eleventh Circuit 

distinguished Carroll by noting, inter alia, that the defendant in 

the present case "admitted to knowing how file sharing programs 

like A[res] worked" and had continued to share child pornography 

after being told by the FBI "how A[res] file sharing worked." 

United States v. Alpizar, No. 16-15170, 2018 WL 3598624, at *6 

(11th Cir. July 26, 2018). 

In sum, Cates, Carroll, and Alpizar demonstrate the type 

of evidence needed to apply the "knowing" distribution enhancement 

in a case involving a program that automatically shares downloaded 

files -- that is, some specific evidence that the defendant used 

the program in a manner demonstrating his awareness of the 

program's file-sharing properties. Without this evidence, a court 

risks applying the enhancement based solely on a defendant's use 

of a file-sharing program, which is the approach explicitly 

rejected by the Sentencing Commission. 

II. 

Against this backdrop, I turn to the record before the 

district court. The government's undisputed version of the facts, 

which was incorporated into the plea agreement, provides the only 

description in evidence of appellant's collection of child 

pornography on his two computers. It states: 
- 27 - 

[D]efendant's Sony VAIO laptop . . . was found to 

contain 26 child sex abuse images. Additionally, 

it contained evidence of: a) 2,578 child sex abuse 

files having been downloaded and then erased; b) 71 

incomplete downloads of child sex abuse files; c) 

74 child sex abuse files being shared on "Ares[";] 

and, d) 23 child sex abuse-related search terms 

having been entered by the defendant. 

[D]efendant's Compaq desktop computer . . . was 

found to contain 1,046 child sex abuse images. 

Additionally, it contained evidence of: a) 802 

child sex abuse files having been downloaded and 

then erased; b) 162 incomplete downloads of child 

sex abuse files; c) 15 child sex abuse files being 

shared on "Ares[";] and, d) 48 child sex 

abuse-related search terms having been entered by 

the defendant.5

In addition to this description of the child pornography that 

appellant possessed, there is no dispute that (1) he searched for 

and downloaded child pornography; (2) he downloaded the Ares filesharing program onto his two computers; (3) a certain number of 

child pornography files were "being shared on Ares," likely meaning 

that these files were in the Ares folders on each device; and (4) 

a smaller number of files in the case of his laptop, and a larger 

number of files in the case of his desktop, were housed elsewhere 

on the computers.6 Finally, although this aspect of the Ares 

 5 I assume that there is no meaningful distinction between 

the government's use of "images" and "files" in this case, 

considering that neither my colleagues, nor the district court, 

nor the parties suggest any such distinction. For consistency, I 

refer to the child pornography on appellant's computers as "files." 

6 To the extent there is any ambiguity in the government's 

description of appellant's child pornography collection, I note it 

follows logically that the files "contain[ed]" on appellant's 

computers are different from the files "being shared on 'Ares.'" 
- 28 - 

program is not made explicit in the record, there is no dispute 

that the program, when first downloaded, "sets up a shared folder 

on the computer where, by default, it automatically places all 

subsequent downloads" from Ares and that files automatically 

placed in this folder are freely accessible to other users. 

Carroll, 886 F.3d at 1350.

On this record, the district court concluded, "[t]he 

selection on both devices of a specific number of child sex abuse 

files to be shared on the 'Ares' network out of the thousands 

downloaded by defendant [indicates] that he applied his computer 

knowledge to pick and choose the particular contraband that he 

wanted to exchange through the 'Ares' file-sharing program." Based 

on this finding, plus a finding that appellant is a "sophisticated 

and long-time computer user," the court concluded that "all 

indications are that [he] used a shared folder that he knew others 

could access in order to download child pornography files." 

Although the majority states that the court "was entitled to draw 

the plausible inferences that led to a finding of knowledge," 

appellant contends that there is no evidence to support the 

district court's inference that he "picked and chose" certain files 

 

For example, appellant's laptop was "found to contain" 26 files, 

but there were 74 files being shared on Ares, demonstrating that 

the files being shared were not a subset of the files "contain[ed]" 

on his computers. 
- 29 - 

to share through Ares, the inference essential to the district 

court's finding of knowledge. I agree. 

III. 

Given that a certain number of child pornography files 

were on appellant's computers but not in the Ares folders, the 

district court inferred that he intentionally placed certain files 

in the Ares sharing folders, or kept certain files in the folders 

while removing others. The court further inferred that he 

performed this allocation because he was aware of the Ares 

program's file-sharing properties. As the district court 

implicitly saw it, there is no reason to intentionally place or 

keep files in the sharing folders other than to share these files 

with other Ares users. 

There is no evidence to support this inference of 

allocation, however, because there is no evidence about the origin 

of the child pornography files on appellant's computers. The 

district court's inference would be supported if there was any 

evidence that appellant moved files between the Ares folders and 

other locations on his computers. Yet for all we know, appellant 

acquired all the files outside the Ares folders from a source other 

than Ares. In that case, all the files in the Ares folders could 

have been automatically placed there when they were downloaded 

through Ares and appellant would not necessarily have moved any 

files into or out of the Ares folders. 
- 30 - 

To be sure, there is a plethora of evidence that could 

have illuminated the allocation issue: for example, computer 

forensic examinations can readily ascertain the origin of files or 

how long they have been on a computer. See Sergeant Josh Moulin, 

What Every Prosecutor Should Know About Peer-to-Peer 

Investigations, Child Sexual Exploitation Program Update Volume 5, 

Number 1, 2010, National District Attorneys Association, National 

Center for Prosecution of Child Abuse (describing the detailed 

evidence about a defendant's use of a file-sharing program, 

manipulation of default settings, and handling of files in general 

that can be ascertained through a computer forensic examination). 

If we knew that any of the files stored outside the Ares folders 

were downloaded through Ares, for example, this would be evidence 

that appellant intentionally removed certain files from the Ares 

folders. Similarly, if we knew that any of the files inside the 

Ares folders were not originally downloaded through Ares -- if 

these files were obtained through another source, for example, via 

the sharing of files on external drives or even through a different 

file-sharing program -- this would be evidence that he 

intentionally placed certain files into the Ares folders. This 

type of evidence, however, is completely absent from the record. 

Thus, the district court's foundational inference -- that 

appellant intentionally allocated files between the Ares folders 

and other locations on his computers -- is pure speculation. 
- 31 - 

Simply put, there was no evidence before the district court that 

appellant "used the program in a manner that indicated an 

understanding of how the program worked," as my colleagues contend. 

We must also remember that references in our sentencing 

enhancement decisions to "plausible inferences" cannot obscure the 

requirement that the government has to prove the applicability of 

a sentencing enhancement by a preponderance of the evidence. See 

United States v. Lacouture, 835 F.3d 187, 189-90 (1st Cir. 2016). 

Since the inference of allocation is at the heart of the district 

court's finding that appellant had knowledge of the file-sharing 

properties of the Ares program, the absence of any evidence to 

support that inference is even more striking. Moreover, a 

traditional rationale for deference to a district court's findings 

-- its ability to weigh credibility -- has no relevance here. We 

are only evaluating the district court's logic, not any assessment 

of credibility. Cf. United States v. Brum, 948 F.2d 817, 819 (1st 

Cir. 1991) ("We review the challenged findings of fact for clear 

error, mindful of the deference to which the sentencing court's 

superior opportunity to assess witness credibility is entitled."). 

The contrast between this case and cases like Cates and 

Carroll is telling. In Cates, we highlighted the veritable 

mountain of specific evidence indicating that the defendant was 

aware of a program's file-sharing properties. See 897 F.3d at 

359-60. In Carroll, the Eleventh Circuit rejected an application 
- 32 - 

of the enhancement that was based solely on the fact that the 

defendant was using Ares. See 886 F.3d at 1353-54. Here, the 

record is devoid of the type of evidence we highlighted in Cates. 

And when we scrutinize the district court's reasoning, it is clear 

that the court, in applying the enhancement, essentially relied on 

the bare fact that appellant was using Ares. 

Without the unsupported inference that appellant "picked 

and chose" files to place in the Ares folders for sharing, all 

that we are left with is the district court's finding that 

appellant possesses a level of general computer proficiency. I 

agree that a defendant's "advanced computer knowledge" may be 

relevant to the knowledge inquiry. However, I am not aware of any 

authority in our case law for the proposition that some level of 

general computer proficiency on a defendant's part is enough, on 

its own, to support a finding of knowledge for purposes of the 

enhancement. But see United States v. Ryan, 885 F.3d 449, 453 

(7th Cir. 2018)(affirming a knowing distribution conviction 

because "[t]he government . . . presented evidence of [defendant]'s 

sophisticated understanding of computers and software"). Even the 

majority does not contend that a defendant's general computer 

knowledge, such as a degree in computer science, is sufficient to 

support the enhancement. Yet once the unsupported inference of 
- 33 - 

allocation is removed from the equation, the evidence of 

appellant's general computer knowledge is all that remains.7

IV. 

The district court applied the "knowing" distribution 

enhancement based on an inference of allocation that is not 

supported by the record. Without any evidence about the origin of 

the various files on appellant's computers, there is no evidence 

that he intentionally moved files into or out of the Ares folders. 

The court's inference of allocation was thus pure speculation. 

Once this unsupported inference is put aside, it is apparent that 

the district court essentially applied the enhancement because 

appellant was using a file-sharing program. That is precisely the 

approach rejected by the Sentencing Commission. My colleagues 

tacitly accept this discredited approach. I would hold that the 

district court clearly erred in applying the enhancement. 

 7 Even if general computer proficiency could theoretically 

support application of the enhancement on its own, appellant's 

level of computer proficiency would fall short. He completed a 

bachelor's degree in computer science and an associate's degree in 

computer networks a decade ago. He further indicated he is 

"skilled in computers" and "expressed interest in completing a 

Master's Degree in Computer Networks." However, he also expressed 

interest in pursuing formal training as a hairstylist, and his 

most recent job before his arrest was as a "receiving supervisor" 

at a "produce packing company . . . earning approximately $500 

weekly." In other words, there is little to no evidence that he 

possessed "advanced computer knowledge" or was especially 

proficient in current computer technology, let alone file-sharing 

programs such as Ares. There is also no record evidence that he 

had used Ares for a significant period of time and thus had an 

opportunity to develop familiarity with the program.