United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 09-2951

___________

United States of America, *

*

Plaintiff - Appellee, *

* Appeal from the United States

v. * District Court for the Western

* District of Arkansas.

Michael Shane Durham, *

*

Defendant - Appellant. *

___________

Submitted: April 13, 2010

Filed: August 26, 2010

___________

Before BYE, BEAM, and GRUENDER, Circuit Judges.

___________

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.) § 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.
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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 Al 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-topeer 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
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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 automatically 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 Limewire’s uploading capabilities.
-4-

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)(1). 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
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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)(1). 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. In fact, he argues, there was no evidence

demonstrating any actual uploads from his computer to warrant the distribution

enhancement; the only evidence showed a listing of his downloaded files was

available at one point for others to access via Limewire, notwithstanding the fact that

no child pornography was discovered in his shared folder upon execution of the search

warrant. The use of Limewire in itself, which automatically enables file-sharing upon

installation, does not provide a sufficient basis for the distribution enhancement,

according to Durham. This is particularly true in this case, he claims, where the

district court explicitly found no evidence of his intent to distribute, advertise, or

transport child pornography.

Under Application note 1 to § 2G2.2, “distribution” is defined as follows:

“Distribution” means any act, including possession with intent to

distribute, production, transmission, advertisement, and transportation,

related to the transfer of material involving the sexual exploitation of a

minor. Accordingly, distribution includes posting material involving the

sexual exploitation of a minor on a website for public viewing but does

not include the mere solicitation of such material by a defendant.

U.S.S.G. § 2G2.2(b)(3)(F) cmt. n. 1.
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Before discussing whether the district court properly applied the distribution

enhancement in the instant matter, we begin with a review of our pertinent cases

examining the application of such enhancements in peer-to-peer network cases. In

United States v. Griffin, 482 F.3d 1008, 1011 (8th Cir. 2007), this court first

considered whether the expectation of receipt of child pornography through a filesharing program constituted a “thing of value, but not for pecuniary gain” pursuant

to a separate five-level distribution enhancement provided under U.S.S.G.

§ 2G2.2(b)(2)(B). Griffin held such bartering of child pornography over a file-sharing

network was sufficient to meet the “thing of value” enhancement because “these

networks exist–as the name ‘file-sharing’ suggests–for users to share, swap, barter, or

trade files between one another.” Id. at 1012-13. Accordingly, the defendant in

Griffin, who admitted he downloaded child pornography and knew other users of the

file-sharing program could download files from him, was appropriately sentenced

based on the five-level “thing of value” enhancement. Id. at 1013.

After Griffin, other circuits that had not yet addressed the issue similarly

concluded the use of a file-sharing program to download child pornography was a

sufficient basis to impose a distribution enhancement under the Guidelines. United

States v. Layton, 564 F.3d 330, 335 (4th Cir. 2009) (“We concur with the Seventh,

Eighth, and Eleventh Circuits and hold that use of a peer-to-peer file-sharing program

constitutes ‘distribution’ for the purposes of U.S.S.G. § 2G2.2(b)(3)(F).”). However,

the Tenth Circuit expressly disagreed with Griffin in United States v. Geiner, 498 F.3d

1104, 1111 (10th Cir. 2007).

In Geiner, the court interpreted Griffin to automatically apply a distribution

enhancement whenever a defendant obtains child pornography through a file-sharing

program. Id. This broad interpretation of the distribution enhancement based merely

on a defendant’s installation of a file-sharing network ignores the language of

§ 2G2.2(b)(3)(B), according to Geiner, which applies an enhancement only when the

defendant distributes child pornography for the receipt, or expectation of receipt, of
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other files on the network. Id. Geiner noted the inquiry was “a question of fact

properly resolved on a case-by-case basis by the sentencing court.” Id. Despite its

disagreement with Griffin, Geiner upheld the application of the enhancement because

the defendant nevertheless expected to receive a “thing of value,” in the form of faster

downloading speeds in return for his sharing of files over the network. Id.

In United States v. Stults, 575 F.3d 834, 848 (8th Cir. 2009), this court noted

Geiner incorrectly interpreted Griffin to automatically apply a distribution

enhancement whenever a defendant utilizes a file-sharing program to download child

pornography. Stults recognized “[o]ur holding in Griffin . . . was inseparable from our

conclusion that ‘the government met its burden of establishing that the defendant

expected to receive a ‘thing of value’ . . . by introducing the defendant’s admissions.”

Id. at 848-49. The defendant in Griffin, Stults acknowledged, admitted he

downloaded child pornography and he knew others could download files from him.

Id. at 849. As a result, Stults concluded, “whether a defendant qualifies for the fivelevel enhancement must be decided on a case-by-case basis, with the government

bearing the burden of pro[of].” Id. While there was no direct admission from the

defendant in Stults, the court nevertheless upheld the application of the enhancement

because circumstantial evidence demonstrated the defendant was technically

sophisticated in computer use and understood how Limewire worked, and thus he

knew he was distributing child pornography through his use of the program. Id.

In United States v. Ultsch, 578 F.3d 827, 829-30 (8th Cir. 2009), this court

again recognized “Griffin did not call for automatic application of the enhancement

‘based merely on a defendant’s installation of file-sharing software,’ as the Tenth

Circuit may have suggested.” Instead, Ultsch reaffirmed that application of a

distribution enhancement must be decided on a case-by-case basis, with the

government bearing the burden of proof. Id. at 830. The district court properly

applied the five-level distribution enhancement, according to the court in Ultsch,

because the defendant was a “relatively sophisticated user” of Limewire who had
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downloaded a “large quantity of material” and used terms indicative of his knowledge

of the sharing capabilities. Id.

More recently, in United States v. Estey, 595 F.3d 836, 843 (8th Cir. 2010), this

court relied on Griffin to impose a two-level distribution enhancement under U.S.S.G.

§ 2G2.2(b)(3)(F), rather than the five-level “thing of value” enhancement provided

under § 2G2.2(b)(3)(B). Estey noted the defendant’s distribution of child

pornography via a file-sharing program “could have amounted to distribution under

either of these subparts of U.S.S.G. § 2G2.2(b)(3),” and thus the defendant’s attempt

to distinguish his case from Griffin on that basis was unavailing. Id. The court was

unimpressed with the defendant’s suggestion that he inadvertently shared images with

other file-sharing users, because “like the defendants in both Griffin and [United

States v. Sewell, 457 F.3d 841 (8th Cir. 2006)], Estey knowingly placed an internet

peer-to-peer file-sharing program on his computer, knew how the program operated,

and shared images with other network users.” Id. at 844. The court noted other users

were able to retrieve the defendant’s images “because Estey had child pornography

in his file-sharing folder when the images were discovered by law enforcement

authorities.” Id. In addition, similar to the defendant in Geiner, the defendant

admitted he placed images in his shared folder to enable him to download images

faster. Id.

In another recent case, United States v. Dodd, 598 F.3d 449 (8th Cir. 2010), this

court significantly altered the analysis applied to child pornography distribution

enhancements in file-sharing cases. The defendant in Dodd asserted he lacked any

intent to distribute child pornography after he downloaded the files to his computer,

despite the fact that an investigator accessed and downloaded child pornography

stored on his computer. Id. at 451. Neither side presented any evidence on the

distribution issue at sentencing and the district court ultimately applied the two-level

enhancement under § 2G2.2(b)(3)(F). Id.
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On appeal, Dodd affirmed the district court’s two-level enhancement under

Griffin. Id. First, Dodd acknowledged the matter was a “fact-intensive inquiry.” Id.

According to the court, while one could hypothesize that a defendant had no

knowledge of his distribution of child pornography files via the file-sharing program,

“the purpose of a file sharing program is to share, in other words, to distribute.” Id.

at 452. As a result, Dodd imposed a new standard whereby the file-sharing defendant

must show “concrete evidence of ignorance–evidence that is needed because

ignorance is entirely counterintuitive.” Id. Without such evidence, Dodd concluded,

“a fact-finder may reasonably infer that the defendant knowingly employed a file

sharing program for its intended purpose.” Id. Despite the new requirement placed

upon the defendant, the court reaffirmed the government retains the burden to prove

the enhancement on a case-by-case basis. Id. at 452 n. 2.

Dodd noted its holding was consistent with the broad definition of

“distribution” encompassed within § 2G2.2. Id. at 452. The court recognized the

Sentencing Commission’s recent clarification that “distribution includes posting

material involving the sexual exploitation of a minor on a website for public viewing

but does not include the mere solicitation of such material by a defendant.” Id.

According to Dodd, “[t]hese definitions confirm that distribution as defined in

§ 2G2.2 includes operating a file sharing program that enables other participating

users to access and download files placed in a shared folder, and then placing child

pornography files in that folder.” Id. at 452-53.

Finally, in this court’s most recent case to date on the issue, United States v.

Bastian, 603 F.3d 460 (8th Cir. 2010), the court again rejected a defendant’s attempt

to avoid the five-level distribution enhancement. Bastian noted the government could

discharge its burden of proving the enhancement through direct evidence, such as the

defendant’s admission, or by indirect evidence, “such as the defendant’s technical

sophistication in computers, inferring that he knew that by using a file-sharing

network, he could download files from others who could also access his files.” Id. at
1

Although the court never reached the issue, Judge Colloton wrote a separate

concurrence discussing the government’s position that the five-level enhancement

applies if a defendant installs a file-sharing program on his computer, knows the

program allows distribution of files, and distributes and receives images through use

of the program. Id. at 467. Judge Colloton noted this position may find some support

in Griffin, but the recent attempts to “clarify” Griffin in Stults and Ultsch “probably

have not sufficiently narrowed some of Griffin’s language and reasoning.” Id. Judge

Colloton concluded the simple use of a file-sharing program, with knowledge of its

operation, was a “tenuous basis on which to urge the application of § 2G2.2(b)(3)”

because it eliminates the need for a “transaction.” Id. at 468. In other words, “[i]f a

file-sharing program allows the user to download child pornography from other

computers, whether or not the user makes his own images available to other parties,

then the user’s distribution is gratuitous. It is not for the receipt of a thing of value,

because it is unnecessary to the receipt of a thing of value.” Id. at 467 (emphasis in

original). 

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466. In Bastian, the defendant used Limewire to download child pornography, but he

never admitted he knew he was sharing files with others, nor was there evidence he

was a sophisticated user of Limewire, according to the defendant. Id. However, the

court never analyzed the application of the enhancement on these facts because it

concluded any error was harmless due to the fact that the defendant’s offense level

would not have been affected even absent the enhancement.1

 Id.

Turning to the facts of this case, Durham asserts there are several distinctions

from the cases discussed above. First, unlike Griffin, the government concedes it has

no direct evidence of Durham’s knowledge of distribution by way of any admission

on Durham’s part. Durham maintains he had no knowledge that other Limewire users

could possibly obtain files from his computer. Likewise, he made no admissions like

the defendants in Geiner and Estey to placing images in his shared folder in order to

enable faster downloading capability over the network. Despite the lack of any

admissions on Durham’s part, our case law is clear that the government may meet its

burden through indirect evidence. Id.
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Durham also argues the instant matter is distinguishable from Dodd and Griffin

because there was no evidence of any actual uploads, i.e. distribution, of child

pornography from Durham’s computer. Barrios confirmed in his testimony that no

evidence existed to show any Limewire users had ever actually obtained child

pornography from Durham’s computer; the evidence only showed at one point the

files with names suggestive of child pornography were available for download.

Further, unlike Estey, upon execution of the search warrant, the officers discovered

no child pornography files in Durham’s shared folder.

Although we agree with Durham that these facts distinguish this case, neither

of these facts alone is determinative because our case law inquires whether the

defendant’s “use of the peer-to-peer file-sharing network made the child pornography

files in his shared folder available to be searched and downloaded by other [filesharing] users.” Estey, 595 F.3d at 843 (emphasis added). See also Griffin, 482 F.3d

at 1010-11 (noting the defendant’s shared folder had been deleted from the computer

upon execution of the search warrant). Parks’s investigation uncovered files with

names suggestive of child pornography available on Durham’s computer through

Limewire, and thus this requirement was satisfied.

While the lack of direct evidence or actual uploads does not make this case

novel, other distinguishing facts present a closer question. First, unlike the typical

situation exemplified by Estey, evidence presented at sentencing shows Durham was

not responsible for the installation of Limewire on his computer. Estey, 595 F.3d at

844 (“Estey knowingly placed an internet peer-to-peer file-sharing program on his

computer, knew how the program operated, and shared images with other network

users.”) (emphasis added). Barrios, the government’s only witness, conceded he did

not know who installed Limewire, and the defense subsequently presented testimony

from Durham’s brother, Casey, regarding the latter’s installation and set-up of the

program. Casey indicated he installed Limewire with Durham’s daughter in order for
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her to download music. According to Casey, he configured Limewire according to

the default settings, which automatically enabled file-sharing with other users.

Second, and more importantly, there is little evidence to show Durham knew

how to operate the program. Casey testified he was “absolutely” more knowledgeable

than Durham about general computer knowledge, and even Casey indicated he

“[knew] a little bit, but . . . not everything, for sure.” Casey further testified he told

Durham he installed Limewire on the family computer, but Durham “wasn’t real sure

how to use it.” Casey speculated Durham’s daughter might have showed him how to

use the program, but “[p]robably not in detail like I showed [his daughter].”

The foregoing facts illustrate a substantial distinction from our prior cases. The

primary means of indirect evidence provided in our prior cases has been the

defendant’s sophistication with the file-sharing program. Such sophistication provides

an inference that the defendant knew “by using a file-sharing network, he could

download files from others who could also access his files.” Bastian, 603 F.3d at 466.

Accordingly, this court has upheld the application of distribution enhancements based

on a defendant’s file-sharing sophistication on numerous occasions. See Estey, 595

F.3d at 844 (“[L]ike the defendants in both Griffin and Sewell, Estey . . . knew how

the [file-sharing] program operated”); Ultsch, 578 F.3d at 830 (“The defendant was

a relatively sophisticated user of [Limewire]”); Stults, 575 F.3d at 849 (“The district

court reasonably deemed Stults, who is technically sophisticated in computer use, with

knowing that he was distributing child pornography through his use of LimeWire.”).

Here, the district court’s analysis evoked the familiar sophistication basis for

its application of the distribution enhancement, as it concluded Durham was “very

knowledgeable” about Limewire’s capabilities. We are troubled by this conclusion,
2

The dissent states there is “ample evidence” to support a finding that Durham

knew how Limewire worked. In addition to Barrios’s testimony, which is discussed

below, the dissent points to facts in the PSR establishing that (1) police identified 59

child pornography files on a computer traced back to Durham’s home, (2) police

found nearly 50 videos and more than 400 images containing child pornography on

Durham’s computer, (3) Durham admitted to searching for illicit videos, and (4) all

of the child pornography was stored under Durham’s password-protected profile.

Each of these facts merely establish evidence of Durham’s downloading and receipt

of child pornography, a fact he does not dispute. The evidence as to Durham’s

knowledge of distribution, as discussed in depth below, demonstrates otherwise. 

3

We recognize the district court was entitled to discredit Casey’s testimony as

it saw fit. See United States v. Johnson, 601 F.3d 869, 872 (8th Cir. 2010) (“A district

court’s assessment of witness credibility is virtually unreviewable on appeal.”).

However, there is no indication whatsoever that the district court deemed Casey’s

testimony unreliable or not credible. 

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however, because it appears to be contradictory to the evidence in the record.2

 The

only testimony directed at Durham’s knowledge of file-sharing programs was

provided by his brother Casey, who explicitly stated Durham “wasn’t real sure how

to use [the file-sharing program].”3

 While there is direct evidence of Durham’s

knowledge of downloading files via Limewire, there is no such evidence of his

knowledge of uploading, i.e. distributing files, over the program, which is a critical

distinction in this case.

Instead, the district court appeared to justify its conclusion on two premises.

First, the court apparently accepted the government’s argument that a shortcut to

Durham’s shared folder on his Windows desktop demonstrated his knowledge of filesharing programs. The argument was based on testimony elicited from Barrios, who

stated a shortcut on Durham’s desktop was created after the installation of Limewire

to allow Durham to directly access his shared folder containing files downloaded from

Limewire.
4

At oral argument, the government suggested Durham was knowledgeable about

Limewire’s capabilities because he searched for terms like “kid sex” and “teen sex.”

These search terms, while indicative of Durham’s desire to download child

pornography, fail to establish any evidence of distribution. 

5

The government also places much emphasis on the fact Durham’s Windows

profile was password-protected. As a practical matter, any effect of the passwordprotection is negated by the record because Casey clearly testified both he and

Durham’s daughter, among others, knew Durham’s password.

6

The dissent also points to Barrios’s testimony that it was “barely possible” that

files could be shared on Limewire without the user’s knowledge after a period of time.

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We note Barrios’s testimony was, at best, equivocal as to whether he examined

the settings for the other users on the computer, and thus he did not know if the

settings on their profiles matched the settings on Durham’s profile. More importantly,

this argument, like the government’s focus on Durham’s search terms for child

pornography, is largely a red herring.4

 Rather than being indicia of distribution, as the

government urges, the fact that Durham might have created a shortcut to his shared

folder more plausibly demonstrates indicia of his receipt of child pornography–a fact

not in dispute.5

 In the same way a file-sharing program exists for the purpose of

sharing files, see Dodd, 598 at 452, a shortcut exists, as its name suggests, to allow a

user to quickly access files in a specified folder in fewer “mouse-clicks” or

keystrokes. The fact Durham may have desired quicker access to his downloaded

materials via a shortcut in Windows does not establish his knowledge that those

materials were simultaneously capable of being uploaded to other users on a software

program, as the shortcut maintains no functionality related to uploading files on a filesharing program. Perhaps such a shortcut may indicate evidence of distribution if the

defendant directly loaded child pornography into the shared folder on his computer,

and then proceeded to upload those files over a file-sharing network; but there is no

suggestion Durham engaged in any such activity because his alleged distribution was

limited to files he downloaded through Limewire. As a result, we reject the

government’s argument that a shortcut provides evidence of distribution.6
After further inquiry by the district court, however, Barrios confirmed multiple times

that “[i]t’s possible” for someone to install Limewire only to receive materials,

without knowing others could also receive materials from them, which occurs under

the default setting. The record demonstrates Casey installed Limewire precisely for

that purpose–for Durham’s daughter to download music. While Casey understood

others could obtain files from him according to the default settings, he never told

Durham of this fact. 

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The second, and more substantial basis relied upon by the district court was its

assessment of the very nature of Limewire itself. The district court began its analysis

by stating the following:

I haven’t heard any evidence that would persuade me that the defendant

possessed with intent to distribute or advertise or transport, but I think

that there is evidence to indicate that this material was posted because it

was placed on a Limewire program, the [single], and perhaps only

purpose of which is to do that very thing, to post it to permit it to be

shared by any and all who might choose to access that site.

The court proceeded to equate Durham’s knowledge of downloading files with

his knowledge of uploading files over Limewire:

Now, based on that and the testimony that I have heard here, it

would seem to me that the defendant was very knowledgeable that the

Limewire program would permit him to access it and download child

porn as and when he chose, without getting any permission from

anybody, but that that feature would permit him to do that. [It strains

credulity] to reason that he would not, by that knowledge, understand

that it’s a two-way street, that if he could do that, it’s quite likely that

others could as well.

As discussed in depth above, we have continued to reaffirm that the government

retains the burden of proving distribution enhancements. Dodd, 598 F.3d at 452 n.2.

Moreover, we have explicitly rejected any suggestion we automatically apply a
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distribution enhancement based merely on a defendant’s use of a file-sharing program.

Ultsch, 578 F.3d at 830. Rather, the enhancement must be decided on a case-by-case

basis depending on the facts at hand. Id.

The district court’s foregoing comments demonstrate it violated this wellestablished principle of our case law by automatically applying the distribution

enhancement based on Durham’s use of a file-sharing program. The court explicitly

concluded Durham had no intent to distribute, but it determined the enhancement was

proper solely because he utilized a file-sharing program, which exists for the purpose

of sharing files between users. While this court has agreed the purpose of these

programs is to share files among its users, see Dodd, 598 F.3d at 452, we have

consistently prohibited the automatic application of distribution enhancements based

solely on a defendant’s use of a file-sharing program.

Perhaps no place in the record is the district court’s automatic application of the

distribution enhancement more telling than after Durham objected to its final

Guidelines calculation. After Durham moved for a two-level reduction pursuant to

§ 2G2.2(b)(1), the court denied the motion by stating the following:

Based upon my ruling and what I’ve heard, his conduct was not limited

to [receipt] because it was posted on the Limewire. He could have

received it, it seems to me, or solicited it without utilizing a program

which featured automatic file-sharing. So I don’t think he qualifies for

that provision. So I’ll deny your motion for that reason.

These comments establish the court’s automatic application of the enhancement

because it explicitly concluded Durham could have avoided the enhancement had he

not used a file-sharing program. Rather than deciding the merits of the enhancement
7

In United States v. Dorvee, 604 F.3d 84, 96 (2d Cir. 2010), the Second Circuit

provided an interesting discussion on the standard application of several § 2G2.2

enhancements in nearly all cases. While Dorvee did not specifically discuss

distribution enhancements, it noted the typical enhancements, including several that

applied to Durham here, result in a concentration of varying offenders at or near the

statutory maximum, which diminishes the importance of the nature and circumstances

of each offense and the history and characteristics of the defendant. Id. at 96-97.

8

Dodd was filed after the parties submitted their briefs, but prior to oral

argument. The government submitted a letter pursuant to Fed. R. App. P. 28(j) urging

us to consider Dodd, and the parties argued the import of the case at oral argument.

9

At oral argument, Durham’s counsel suggested Dodd impermissibly shifted the

burden of proving distribution enhancements from the government to the defendant.

We need not address this issue here because, in any event, we conclude Durham

presented “concrete evidence” of his ignorance to satisfy the Dodd standard. 

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on an individualized basis under the facts, the court automatically imposed the

enhancement because Durham used a file-sharing program, contrary to our precedent.7

The district court’s automatic application of the enhancement is further

demonstrated by this court’s recent pronouncement in Dodd that unless a defendant

presents “concrete evidence of ignorance,” the fact-finder may reasonably infer the

defendant utilized a file-sharing program to distribute files.8

 598 F.3d at 452. While

we have not yet had occasion to consider what constitutes “concrete evidence of

ignorance,” we conclude the evidence presented by Durham meets this standard.9

First, this matter is distinguishable from Dodd because, in that case, neither the

government nor the defendant presented any evidence on the distribution enhancement

at sentencing. Id. at 451. By contrast, the government in this case presented

testimony from Barrios on the investigation. Durham objected to the enhancement

and presented testimony of his lack of knowledge from his brother, Casey.
10The dissent states it is “skeptical that the opinion of a defendant’s sibling” is

the kind of “concrete evidence” Dodd had in mind. As stated above, there is

absolutely no indication the district court deemed Casey’s testimony unreliable or not

credible. Absent such a finding, it is not within our province on appeal to make such

determinations. See United States v. Johnson, 601 F.3d 869, 872 (8th Cir. 2010) (“A

district court’s assessment of witness credibility is virtually unreviewable on appeal.”)

(internal quotation marks and citation omitted). On the other hand, the dissent bases

much of the support for its conclusion on the testimony of Barrios, a witness described

at oral argument by the government as “admittedly . . . not a strong witness.” 

11We again note Dodd’s “concrete evidence” standard did not supersede the

government’s burden to prove the enhancement on a case-by-case basis. Id. at 452

n.2. The government failed to meet its burden in this case, and the district court

improperly applied the enhancement on an automatic basis due to Durham’s use of a

file-sharing program. 

-18-

As discussed above, Casey indicated he installed Limewire on Durham’s

computer, he did not instruct Durham on how to use the program, and Durham was

not knowledgeable regarding the program’s capabilities. In addition, the government

conceded at oral argument Barrios was not a strong witness, and it should have called

Detective Parks to testify regarding his knowledge of the investigation. Under these

circumstances, we conclude Durham presented “concrete evidence” of his ignorance.10

As a result, even under the stricter Dodd standard, the district court’s application of

the distribution enhancement was improper.11

In light of our foregoing discussion, we conclude the district court improperly

calculated Durham’s Guidelines range by applying a two-level distribution

enhancement under § 2G2.2(b)(3)(F). We reverse the district court’s application of

the enhancement and we remand for resentencing, at which time the district court may

consider whether Durham is entitled to a further two-level reduction under

§ 2G2.2(b)(1). Stults, 575 F.3d at 847 (“A non-harmless error in calculating the

guidelines range requires a remand for resentencing.”).
12In his brief, Durham also challenged a special condition prohibiting

unsupervised contact with minors. Durham withdrew his objection to this condition

at oral argument, however, and therefore the issue is no longer before us. See United

States v. Little Hawk, 449 F.3d 837, 839 n. 2 (8th Cir. 2006).

-19-

B. Special Conditions of Supervised Release

Durham next contends the district court abused its discretion by imposing

certain special conditions of supervised release. The first challenged condition allows

the probation office to track his whereabouts by any means it deems necessary. The

second challenged condition bans Durham from accessing child pornography during

the time he has internet access. Finally, the last challenged condition prohibits

Durham from accessing the internet without prior approval from the probation

office.12

“We review the district court’s imposition of the terms and conditions of

supervised release for an abuse of discretion.” United States v. Jorge-Salgado, 520

F.3d 840, 842 (8th Cir. 2008) (citation omitted). “We recognize that the district court

is afforded wide discretion in imposing supervised release conditions.” Id. But this

discretion is limited by the requirement that the conditions “be reasonably related to

the § 3553(a) factors, involve no greater deprivation of liberty than is reasonably

necessary, and are consistent with any pertinent policy statements issued by the United

States Sentencing Commission.” Id.; United States v. Bender, 566 F.3d 748, 751 (8th

Cir. 2009).

1. Tracking Condition

Special Condition 2 requires Durham to “submit to any means utilized by the

probation office to track his whereabouts or location at any time during supervised

release.” After Durham objected to the condition at sentencing, the court noted it did

not mean to say Durham needed a GPS unit attached to him, or some other like means,
-20-

because “that probably would not be necessary,” but the court noted the option was

left to the probation office to decide whether such means were necessary.

Durham contends the condition involves a greater deprivation of liberty than

is reasonably necessary under the circumstances because it is not reasonably related

to the § 3553(a) factors such as promoting deterrence, protecting the public, and

advancing his correctional needs. Durham also asserts, despite his objection at

sentencing, the district court did not explain why it was imposing the tracking

condition–it only explained how it intended the probation office to carry out the

condition if it deemed the condition necessary. Instead, he points out the probation

office will know his general whereabouts because of his sex offender registration

requirement, and the court failed to articulate how precise tracking was reasonably

related to his history and characteristics, the nature of the offense, or any other factor.

“Conditions delegating limited authority to non judicial officials such as

probation officers are permissible so long as the delegating judicial officer retains and

exercises ultimate responsibility.” United States v. Mickelson, 433 F.3d 1050, 1056

(8th Cir. 2006). In Mickelson, this court upheld a similar condition affording the

probation office discretion to track the defendant’s whereabouts in a receipt of child

pornography case. Id. at 1056-57. The court noted flexible conditions such as this

can serve a defendant’s interests because they can be tailored to meet particular

correctional needs. Id. at 1057. The court also recognized the district court

maintained the ultimate authority over the defendant, and therefore there was no abuse

of discretion. Id.; but see United States v. Baird, 276 Fed. Appx. 691, 692 (9th Cir.

2008) (vacating a GPS monitoring condition where the record was insufficiently

developed to allow the court to review whether the condition was necessary in light

of the § 3553(a) factors).

In light of Mickelson, we conclude the district court did not abuse its discretion

in imposing Special Condition 2. The court indicated the conditions it imposed were
-21-

designed to assist Durham if he was tempted to have problems in the future. We also

agree with the government that Durham’s bond revocation during pretrial supervision

for first degree forgery provides further support for the condition. This is particularly

true in light of the magistrate judge’s finding that Durham was a flight risk at the time,

which indicates a need for greater monitoring. Moreover, the district court maintains

the ultimate authority over Durham. Under these circumstances, the district court did

not abuse its discretion in imposing Special Condition 2. 

2. Child Pornography Ban

Durham next challenges Special Condition 7, which bars him from possessing

child pornography. He asserts the district court’s oral pronouncement conflicts with

its written judgment, and thus the matter must be remanded so the written judgment

can be modified to reflect the oral pronouncement. The court’s two specific versions

of the special condition are set forth below:

Oral Pronouncement: A seventh added condition will be that during the

time that the defendant has access to the internet, he shall not access any

site or view any materials that are related or deemed to be child porn, or

that could be characterized as being child porn, or otherwise illegal.

Written Judgment: The defendant shall not access or possess child

pornography.

Durham notes the mandatory requirement to not commit any new offenses already

prohibits either variation of Special Condition 7. Regardless, he asserts the oral

pronouncement prevails and the written judgment must be modified. The government

acknowledges the two conditions do not track word-for-word, but it contends the

discrepancy is innocuous and the written conditions do not conflict with the oral

pronouncement.
-22-

“Where an oral sentence and the written judgment conflict, the oral sentence

controls.” United States v. Foster, 514 F.3d 821, 825 (8th Cir. 2008) (citation

omitted). See also United States v. Tramp, 30 F.3d 1035, 1037 (8th Cir. 1994) (“The

oral pronouncement by the sentencing court is the judgment of the court.”). Here, we

agree with the government that the court’s written judgment does not conflict with its

oral pronouncement. Under either variation, Durham is prohibited from accessing

child pornography, which, as he concedes, is also prohibited by the mandatory

requirement not to commit any new offenses. See United States v. Love, 593 F.3d 1,

10 (D.C. Cir. 2010) (holding any minor differences between the oral pronouncement

and written judgment did not require remand). We therefore reject Durham’s

argument with regard to Special Condition 7.

3. Restriction on Internet Access

Finally, Durham challenges Special Condition 5, which restricts his internet

access without prior approval from the probation office. I concur with the judgment

of the court announced in Judge Gruender’s separate opinion that the district court’s

written judgment conflicts with its earlier oral pronouncement on Special Condition

5 because it substantially broadens the restriction placed upon Durham by focusing

on any device with internet capabilities, which could be read to ban cell phones,

portable music players, televisions, and a myriad of other devices. 

In addition, I believe the internet restriction under Special Condition 5 provides

a greater deprivation of liberty than is reasonably necessary, and therefore I would

vacate and remand the district court’s imposition of that condition. As a result, I

dissent from the judgment of the court announced in Judge Gruender’s separate

opinion that the district court did not commit plain error in imposing Special

Condition 5.
-23-

Unlike the tracking condition above, Durham did not object to the condition at

sentencing, and therefore the condition is reviewed for plain error. United States v.

Camp, 410 F.3d 1042, 1044 (8th Cir. 2005). “Plain error occurs if the district court

errs, the error is clear under current law, and the error affects the defendant’s

substantial rights.” United States v. Kreitinger, 576 F.3d 500, 505 (8th Cir. 2009).

As an initial matter, Durham contends the plain error review should be relaxed

in this case because of the nature of the sentencing context, which would not require

a new trial, but merely a remand for resentencing or a modification of conditions.

United States v. Sofsky, 287 F.3d 122, 125 (2d Cir. 2002). However, he

acknowledges the Eighth Circuit rejected this approach in United States v. Ristine,

335 F.3d 692, 694 (8th Cir. 2003) and instead applied a plain error standard. Because

our panel is bound by Ristine, I would decline Durham’s invitation to apply a relaxed

plain error standard. United States v. Craddock, 593 F.3d 699, 702 (8th Cir. 2010)

(“Even if we found this argument persuasive, we are without the authority to overrule

the decisions of a prior panel of this circuit.”) (citation omitted).

In assessing Durham’s challenge to Special Condition 5, I find persuasive the

court’s analysis in United States v. Crume, 422 F.3d 728, 733 (8th Cir. 2005), which

reversed a condition banning all internet usage for a defendant convicted of receiving

child pornography. Crume noted that, “[a]lthough the district court is entrusted with

broad discretion to fashion special conditions of supervised release, we are

particularly reluctant to uphold sweeping restrictions on important constitutional

rights.” Id. Crume distinguished prior cases because even though the defendant had

a lengthy history of grievous sexual misconduct, there was no evidence he used the

computer or internet for anything more than mere possession of child pornography.

Id. The court was “not convinced that a broad ban from such an important medium

of communication, commerce, and information-gathering is necessary given the

absence of evidence demonstrating more serious abuses of computers or the Internet.”

Id. In addition, Crume held the district court could “impose a more narrowly-tailored
13The government claims Durham used his computer for more than collecting

child pornography, including allegedly storing pictures of himself masturbating. The

government also alleges Durham showed his daughter a picture of a woman

performing oral sex on a man in an effort to educate her about the dangers of the

internet. Durham allegedly admitted to this instance, but it was disputed at the

sentencing hearing, and even Barrios concluded in his testimony that the incident did

not actually take place after interviewing Durham’s daughter and friends.

-24-

restriction on [the defendant’s] computer use through a prohibition on accessing

certain categories of websites and Internet content and can sufficiently ensure his

compliance with this condition through some combination of random searches and

software that filters objectionable material.” Id.

Since Crume, this court has continued to analyze whether the defendant used

his computer to do more than merely possess child pornography in determining

whether similar conditions should be upheld. For example, in United States v.

Bender, 566 F.3d 748, 751-52 (8th Cir. 2009), the court upheld a ban on computer and

internet usage for a defendant who arranged on-line to meet a woman for sexual

relations and pursued a relationship with her despite discovering she was a minor.

Similarly, in United States v. Alvarez, 478 F.3d 864, 867 (8th Cir. 2007), this court

concluded an internet ban was justified for a defendant who admitted material he

found online contributed to his sexual contact with a minor. Alvarez distinguished

Crume by noting the defendant’s statements and actions “may be interpreted to

suggest that online material provides him encouraging, actionable ideas.” Id. Finally,

in Stults, this court upheld a condition barring internet access based in part on the

defendant’s sophistication with computers and his large database of illicit materials.

Stults, 575 F.3d at 856. The defendant in Stults maintained unlimited access to

computers for his employment purposes. Id.

Under the instant facts, I am not convinced Durham used his computer or

internet access for anything other than possessing child pornography.13 “As Crume
-25-

and the decisions from other circuits illustrate, a complete ban on Internet access is

difficult to justify as a least restrictive means of satisfying the statutory objectives of

supervised release in the case of a defendant whose criminal conduct involved simple

possession of child pornography.” United States v. Mark, 425 F.3d 505, 510 (8th Cir.

2005). I believe the record in this case, like Crume, is not sufficient to justify a

complete ban on internet access and I would conclude the district court plainly erred

by imposing Special Condition 5. Whether other alternatives may be appropriate,

such as filtering programs, cannot be ascertained from the current record. Nor is it

clear why the district court apparently believed Durham’s regular probation

supervision would be inadequate to protect the public and deter future conduct. As

in Crume, I am confident the district court could impose a more narrowly-tailored

restriction on Durham’s computer use to ensure his compliance with the condition.

III

For the foregoing reasons, we conclude the district court improperly calculated

Durham’s Guidelines range by imposing a two-level distribution enhancement. We

reverse and remand for resentencing, at which time the district court may consider

whether Durham is entitled to a further two-level reduction under § 2G2.2(b)(1).

However, we affirm the district court’s imposition of Special Condition 2, which

authorizes the probation office to track Durham’s whereabouts, as well as Special

Condition 7, which prohibits Durham from accessing child pornography.

BEAM, Circuit Judge, concurring in part and dissenting in part.

I concur in the court's opinion except for Part II.B.3. With respect to that part,

I join Part II. of Judge Gruender's opinion concurring, dissenting and in part

announcing the judgment of the court.
-26-

GRUENDER, Circuit Judge, concurring in part, dissenting in part, and announcing

the judgment of the court in part.

I agree with the majority’s conclusion that the district court did not abuse its

discretion in imposing the special condition of supervised release concerning the

probation office’s authority to track Durham’s whereabouts (“Special Condition 2”).

I also agree with the conclusion that there is no meaningful conflict between the

district court’s oral pronouncement of the special condition prohibiting Durham from

accessing child pornography (“Special Condition 7”) and the description of that

condition in the written judgment. I do not agree, however, with the majority’s

conclusion that the district court improperly applied the two-level enhancement under

U.S.S.G. § 2G2.2(b)(3)(F) for distribution of material involving the sexual

exploitation of a minor. Accordingly, I join Parts II.B.1 and II.B.2 of Judge Bye’s

partial majority opinion, but I respectfully dissent from the outcome and rationale set

forth in Part II.A. As to the special condition restricting Durham’s access to the

Internet (“Special Condition 5”), this opinion announces the judgment of the court.

Although we conclude that the district court did not commit plain error in imposing

Special Condition 5, we remand with instructions to amend the relevant portion of the

written judgment to conform to the district court’s oral pronouncement. 

I.

Regarding the distribution enhancement, the dispositive question is whether the

district court clearly erred in finding that Durham distributed child pornography. See

United States v. Dodd, 598 F.3d 449, 451 (8th Cir. 2010) (noting that deciding

whether a defendant qualifies for the distribution enhancement is “a fact-intensive

inquiry,” and thus applying the deferential “clear error” standard of appellate review),

cert. denied, 561 U.S. ---, 2010 WL 2191746 (June 28, 2010); see also United States

v. Bates, 584 F.3d 1105, 1108 (8th Cir. 2009) (“We review the district court’s

interpretation and application of the guidelines de novo and its factual findings for
-27-

clear error.” (citing United States v. Pate, 518 F.3d 972, 975 (8th Cir. 2008))). It

bears repeating that the relevant application note defines “distribution” to include

“posting material involving the sexual exploitation of a minor on a website for public

viewing.” U.S.S.G. § 2G2.2 cmt. n.1. Based on this application note, along with the

ordinary meaning of the applicable terms, we recently held that “distribution as

defined in [section] 2G2.2 includes operating a file sharing program that enables other

participating users to access and download files placed in a shared folder, and then

placing child pornography files in that folder.” Dodd, 598 F.3d at 452-53.

The majority acknowledges that our prior cases have upheld the application of

“distribution enhancements”—viz., the two-level enhancement under

section 2G2.2(b)(3)(F) and the five-level enhancement under section 2G2.2(b)(3)(B),

which requires distribution in exchange for the receipt or the expectation of receipt of

a thing of value—based on the defendant’s having some amount of “sophistication”

about the file-sharing program he used to acquire child pornography. Ante, at 12

(citing United States v. Estey, 595 F.3d 836, 844 (8th Cir.), cert. denied, 560 U.S. ---,

130 S. Ct. 3342 (2010); United States v. Ultsch, 578 F.3d 827, 830 (8th Cir. 2009);

United States v. Stults, 575 F.3d 834, 849 (8th Cir. 2009), cert. denied, 559 U.S. ---,

130 S. Ct. 1309 (2010)). And the majority notes that in this case, the district court

“evoked the familiar sophistication basis for . . . [applying] the distribution

enhancement,” finding that “Durham was ‘very knowledgeable’ about Limewire’s

capabilities.” Ante, at 12. Yet the majority concludes that it was improper for the

district court to apply the distribution enhancement. See ante, at 18. The majority

gives three reasons.

First, the majority says that the district court’s finding about Durham’s

sophistication “appears to be contradictory to the evidence in the record.” Ante, at 13.

Second, the majority says that the district court “violated [a] well-established principle

of our case law by automatically applying the distribution enhancement based on

Durham’s use of a file-sharing program.” Ante, at 16. Third, the majority says that
-28-

“this matter is distinguishable from Dodd because . . . Durham presented ‘concrete

evidence’ of his ignorance.” Ante, at 17-18. I disagree on all counts.

The majority’s first and third reasons overlap, so I will discuss them together.

As an initial matter, there is ample evidence in the record to support the district court’s

finding that Durham knew how LimeWire worked. For instance, the stipulated factual

basis in the plea agreement and undisputed portions of the presentence investigation

report established the following facts:

•Police identified at least 59 files containing known or suspected

depictions of child pornography that had been posted on LimeWire—and

which were therefore accessible to the public—by a computer user

whose Internet Protocol address was traced back to Durham’s home. 

•Police found nearly 50 videos and more than 400 images containing

child pornography on a computer seized from Durham’s home.

•Durham admitted to police that he employed LimeWire to download

child pornography, searching for illicit videos and images using terms

such as “kid sex” and “teen sex.” 

•Although Durham’s computer had several user profiles, all of the

depictions of child pornography stored on the computer were located

under Durham’s password-protected profile. 

At the sentencing hearing, Detective Al Barrios of the Springdale, Arkansas

Police Department testified at length about the investigation into Durham’s criminal

activity. One of the things Detective Barrios discussed was a user-created desktop

icon found under Durham’s profile, named “shared-shortcut” or “shared deskshortcut.” According to Detective Barrios, a user who double-clicked on that icon

would go directly to the shared folder associated with Durham’s LimeWire account.

Detective Barrios reported that he “uncovered evidence that . . . child notable files

[i.e., files containing known or suspected depictions of child pornography]” had been
-29-

“downloaded with Limewire and . . . saved in [Durham’s] shared folder,” but “none

of them were present [in the shared folder]” when the computer was seized.

Detective Barrios also testified about how LimeWire works and what a typical

user would learn about that program over time. In particular, Detective Barrios told

the district court about various ways a user could discover that files were being

uploaded from his shared folder by other users. To take just one example, Detective

Barrios directed the court’s attention to up and down arrows displayed on a screen

shot taken from Durham’s computer. These arrows, Detective Barrios explained,

would have showed active file transfers being conducted through LimeWire—both

downloads to Durham’s shared folder and uploads by other users from Durham’s

shared folder. In response to follow-up questions posed by the district court,

Detective Barrios testified that it was “[b]arely possible” that files could be shared on

LimeWire without the user’s knowledge, but only if the user had very limited

experience with file sharing. Detective Barrios went on to say that “[a]ny person

who’s used that program for months would be able to see file transfers as they were

taking place, including downloads and uploads,” thereby suggesting that it would be

unlikely for an experienced user to share files inadvertently.

The majority gives short shrift to most of this evidence. The majority does,

however, discuss two items: Durham’s admission that he used search terms such as

“kid sex” and “teen sex” to search for child pornography, ante, at 14 n.4, and the

desktop shortcut to Durham’s shared folder, ante, at 13-14. The majority asserts that

the search terms and the shortcut are not relevant because they prove only that

Durham desired to (and did) download child pornography, and hence do not qualify

as “indicia of distribution.” Ante, at 14 & n.4. Here, the majority has created and

dispatched a straw man. What counts under Estey, Ultsch, and Stults is whether

Durham had knowledge about how LimeWire worked. The evidence that the majority

rejects is plainly relevant to deciding how much Durham knew about the file-sharing

program he used to acquire child pornography, even if it does not conclusively prove
-30-

that he intentionally distributed illicit files. The presence on his desktop of a shortcut

to a folder whose name included the word “shared,” and which at one time stored files

containing child pornography, strikes me as especially probative.

In any event, the two disputed items should not be considered in isolation. The

other facts introduced above proved that Durham used LimeWire to acquire a large

collection of child pornography. And Detective Barrios’s testimony confirmed that

an experienced user of LimeWire could scarcely avoid learning that files stored in his

shared folder were accessible by other users (though that fact was already evident to

anyone familiar with popular peer-to-peer file-sharing programs, such as LimeWire).

Considered as a whole, the evidence in the record was more than sufficient to support

a finding that Durham was a sophisticated member of LimeWire’s peer-to-peer

network, that he understood how file sharing worked, and that he knowingly used

LimeWire to distribute child pornography. 

If there was any residual doubt on this point, it ought to have been dispelled by

our recent decision in Dodd. There, we noted that “[o]ne can hypothesize . . . that

even a defendant who pleaded guilty to knowing receipt and possession [of child

pornography] might have no knowledge that his computer was equipped to distribute.”

598 F.3d at 452. But we observed that “[t]he purpose of a file sharing program is to

share, in other words, to distribute.” Id. Thus, we held that “[a]bsent concrete

evidence of ignorance—evidence that is needed because ignorance is entirely

counterintuitive—a fact-finder may reasonably infer that the defendant knowingly

employed a file sharing program for its intended purpose.” Id. In Dodd, we affirmed

the district court’s application of the distribution enhancement even though the

Government presented no evidence at sentencing. See id. at 451. After Dodd, the

notion that we may overturn the district court’s application of the distribution

enhancement due merely to a lack of supporting evidence (beyond Durham’s

extensive use of LimeWire) would be difficult or impossible to maintain. 
14I likewise reject Durham’s implication that this panel can either disregard

Dodd or hold that Dodd was wrongly decided. See ante, at 17 n.9. As we have said

many times, “[o]ne panel of this Court is not at liberty to disregard a precedent handed

-31-

It is possible, of course, that Durham presented adequate evidence of ignorance

to undermine the district court’s finding that he distributed child pornography. The

majority suggests that Durham did so by eliciting testimony from his brother, Casey.

See ante, at 12-13, 17-18. As the majority recounts, “Casey indicated [that] he

installed Limewire on Durham’s computer, [that] he did not instruct Durham on how

to use the program, and [that] Durham was not knowledgeable regarding the

program’s capabilities.” Ante, at 18. The majority holds that this testimony

constitutes “concrete evidence” of Durham’s ignorance, ante, at 17-18, and concludes

that “even under the stricter Dodd standard, the district court’s application of the

distribution enhancement was improper,” ante, at 18.

I am skeptical that the opinion of a defendant’s sibling concerning the extent

of the defendant’s sophistication is the kind of “concrete evidence” that the court in

Dodd had in mind. Nevertheless, even assuming that Casey Durham’s testimony was

relevant and probative, it does not follow that his testimony seriously undermined the

district court’s finding that the defendant was “very knowledgeable” about how

LimeWire worked. At most, Casey Durham’s testimony left the district court with a

choice between two permissible views of the evidence. See Anderson v. City of

Bessemer City, 470 U.S. 564, 574 (1985). Whether we think the district court adopted

the more plausible view is of no moment, for “[w]here there are two permissible views

of the evidence, the fact-finder’s choice between them cannot be clearly erroneous,”

id. (citing United States v. Yellow Cab Co., 338 U.S. 338, 342 (1949)). See also

United States v. Tournier, 171 F.3d 645, 648 (8th Cir. 1999) (“Under the clear error

standard, we need not agree with the district court’s findings of disputed fact to

affirm.”). This unexceptional principle is entirely consistent with the court’s

reasoning in Dodd, so I reject the majority’s suggestion that Dodd can be

distinguished away.14
down by another panel,” United States v. Zuniga, 579 F.3d 845, 848 (8th Cir. 2009)

(per curiam) (alteration in original) (quoting Drake v. Scott, 812 F.2d 395, 400 (8th

Cir. 1987)), cert. denied, 560 U.S. ---, 2010 WL 2243722 (June 7, 2010), and “[o]nly

the court en banc may overrule circuit precedent, subject to a limited exception in the

case of an intervening Supreme Court decision that is inconsistent with circuit

precedent,” id. (citing Young v. Hayes, 218 F.3d 850, 853 (8th Cir. 2000)). 

-32-

That leaves the majority’s assertion that the district court “violated [a] wellestablished principle of our case law by automatically applying the distribution

enhancement based on Durham’s use of a file-sharing program,” ante, at 16. See also

Dodd, 598 F.3d at 452 n.2 (“[O]ur decisions applying [United States v. Griffin, 482

F.3d 1008 (8th Cir. 2007)] have made clear that the government must prove that [a]

defendant expected to receive a thing of value on a case-by-case basis, but the issue

can be proved by circumstantial evidence. The same analysis applies to the two-level

distribution enhancement.” (internal citations omitted)). In my view, the proposition

that the district court automatically applied the enhancement is inconsistent with the

majority’s earlier statement that the district court “evoked the familiar sophistication

basis for . . . [applying] the distribution enhancement, as it concluded [that] Durham

was ‘very knowledgeable’ about Limewire’s capabilities,” ante, at 12. If the district

court made a factual finding about Durham’s sophistication—and the majority says

that it did, see ante, at 12—then the district court’s application of the distribution

enhancement could not have been automatic.

The automatic application theory is flawed in another way: namely, it is

incompatible with any fair reading of the district court’s comments at the sentencing

hearing. This conclusion becomes virtually inescapable once the district court’s

comments—quoted selectively and interpreted uncharitably by the majority—are

placed in context. Here, then, is a slightly abridged version of what the district court

said in ruling on the enhancement, starting on page 75 of the sentencing transcript

(page 90 of the consolidated transcript of the change of plea and sentencing hearings):
-33-

All right. Ladies and gentlemen, at issue here is the provision or

the part of the Pre-sentence Investigation Report that was prepared by

Mr. Scott [a U.S. Probation Officer], which opines and states that he

believes that there is a specific offense characteristic that warrants the

addition of two points to the total offense level. The base total offense

level started at 22, as shown by Paragraph 31 of the Pre-sentence

Investigation Report, and had a two-point increase under Paragraph 32.

The challenged increase is under Paragraph 33. 

. . . . 

Now, in the commentary to [section 2G2.2], there is a definition[]

section under Application Note 1: “‘Distribution’ means any act,

including possession with intent to distribute, production, advertisement,

and transportation[,] related to the transfer of material involving the

sexual exploitation of a minor. Accordingly, distribution includes

posting material involving the sexual exploitation of a minor on a

website for public viewing, but does not include the mere solicitation of

such material by a defendant.”

So I think the question becomes, under the circumstances here

shown by the proof, . . . whether there was a “posting” of the material.

I haven’t heard any evidence that would persuade me that the defendant

possessed with intent to distribute or advertise or transport, but I think

that there is evidence to indicate that this material was posted because it

was placed on a Limewire program, the signal, and perhaps only purpose

of which is to do that very thing, to post it to permit it to be shared by

any and all who might choose to access that site.

. . . [T]he defense’s posture is, well, that may all be true, but it is

not shown, and cannot be shown, at least to the defendant’s satisfaction,

that he knew that would be the case, that if these materials were placed

in the Limewire system, or whatever it is, that that could amount to a

posting, which would make it available for public viewing.
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The defendant, of course, has not testified. He has no obligation

to do so, but he has not indicated what his thoughts were. . . . [I]n the

body of the [presentence] report, there is a recounting of what he did say

when he was interviewed, and he—according to the report, which these

portions are not objected to, he was asked if he downloaded a lot of stuff

to the computer, and he said he used Limewire to download songs.

When told that they, the detectives, were aware that there was child porn

on his computer and they wanted to know who was responsible for it, he

initially advised the detectives that he “doesn’t look at that stuff”.

When told his computer had a lot of activity regarding child

pornography, Durham responded that he watches a lot of “To Catch a

Predator”. Durham was asked, and agreed to an interview later at the

Springdale Police Department . . . . During that interview, he admitted

to showing his daughter a picture of a 12-year[-]old girl performing oral

sex on a man for educational purposes. Durham explained that he

showed this picture to his daughter to tell her this could happen to her if

she was not careful on the internet. Whether the picture came from the

internet is not clear. It hasn’t been shown to me one way or the other.

[Durham] stated he and his daughter then watched “To Catch a

Predator”. Durham then admitted to looking at 30 to 40 images of 12-

year[-]old girls, etcetera, etcetera. He said that he would type in certain

terms on Limewire to download these images.

Now, based on that and the testimony that I have heard here, it

would seem to me that the defendant was very knowledgeable that the

Limewire program would permit him to access . . . and download child

porn as and when he chose, without getting any permission from

anybody, but that that feature would permit him to do that. It’s strange

credulity [read: “It strains credulity”] to reason that he would not, by

that knowledge, understand that it’s a two-way street[;] that if he could

do that, it’s quite likely that others could as well.

His brother testified, I think quite candidly, that he well knew

what that program was and how it was easily accessible. I think the
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difficulty with the Government’s proof here is they have no statement

from Mr. Durham saying that he knew that, and that he was aware when

he posted these images on Limewire that the public could access it, even

as he could and did from other sites. But the absence of direct evidence

on that, I don’t think curtails or forbids a conclusion that he did know.

. . . . 

The default program on the computer, its existence, I think, is

troubling initially, but when it is seen that the defendant was

knowledgeable enough, from however source he gained his knowledge,

to enter his own profile and to make certain changes to those defaults,

one of which [was] to select and utilize an icon that specifically mentions

share[d] files, it sort of defies common sense to think that a person who

could and would do that would not believe that someone other than

himself could access the files that were on that Limewire since, of

course, he . . . himself could do it.

. . . [T]he proof standard that I have in a sentencing hearing is not

proof beyond a reasonable doubt, but a far lesser standard that is more

likely than not, or basically a preponderance of the evidence, if you will.

Judged by that standard, I am not able to say that I can conclude that Mr.

Durham did not know that the images that he downloaded and had

present and posted on his Limewire program were not accessible to the

public, and so I will overrule the objection. I do think the two-point

enhancement is appropriate, so I will overrule the objection on that

score.

(Emphasis added.)

Durham’s attorney, James Pierce, then moved for a two-level reduction under

section 2G2.2(b)(1), which applies only if “the defendant’s conduct was limited to the

receipt or solicitation of material involving the sexual exploitation of a minor.”

Having found seconds earlier that Durham’s conduct was not limited to receipt or
15The majority suggests that the last quoted paragraph is the best evidence that

the district court applied the distribution enhancement automatically, stating that the

district court “explicitly concluded Durham could have avoided the enhancement had

he not used a file-sharing program.” Ante, at 16-17. But the majority’s interpretation

cannot be correct, unless one assumes that the district court conflated the enhancement

under section 2G2.2(b)(3)(F), which it had already granted, with the requested

reduction under section 2G2.2(b)(1). Because the district court could not have granted

the reduction without reversing the ruling it had made on the enhancement a few

seconds earlier, the motion for a reduction was obviously doomed, and the district

court would have been justified in rejecting the motion without further comment. 

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solicitation, the district court could have summarily rejected the requested reduction.

Instead, the district court gave this additional explanation:

Well, with respect, I don’t think that the section you mentioned,

Mr. Pierce, is applicable by its own terms. And I did read them earlier.

I’ll mention them again. Under [subsection (b)], specific offense

characteristics, . . . “If (A)”—and that’s the first

prong— . . . “[subsection (a)(2)] applies”—and it does because there’s

a 22 awarded—“and (B) the defendant’s conduct was limited to the

receipt or solicitation of material involving the sexual exploitation of a

minor.”

 Based upon my ruling and what I’ve heard, his conduct was not

limited to that because it [i.e., child pornography] was posted on the

Limewire. He could have received it [i.e., child pornography], it seems

to me, or solicited it [i.e., child pornography] without utilizing a program

which featured automatic file-sharing. So I don’t think he qualifies for

that provision. So I’ll deny your motion for that reason.15

Considering all of the district court’s analysis, and giving substantial weight to

the comments placed in italics, I am convinced that the district court’s ruling on the

distribution enhancement was proper in all respects. The district court’s extensive

discussion of the issue, culminating in a factual finding about Durham’s

sophistication, refutes the proposition that the court applied the enhancement
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automatically. Indeed, if the district judge meant to avoid making an individualized

determination, it would be passing strange for him to spend so many words explaining

a supposedly automatic decision. Since I see no sound basis for concluding that the

district court clearly erred in finding that Durham distributed child pornography, I

would affirm the court’s application of the enhancement under section 2G2.2(b)(3)(F).

II.

Regarding Special Condition 5, this opinion, which Judge Beam joins in

relevant part, announces the judgment of the court. We first address Durham’s

challenge to the district court’s oral pronouncement restricting Durham’s access to the

Internet. Durham did not object to Special Condition 5 at sentencing, so our review

is for plain error. See, e.g., United States v. Kerr, 472 F.3d 517, 521 (8th Cir. 2006).

Because we conclude that the district court did not commit plain error in imposing this

special condition, we go on to consider Durham’s alternative claim, that the district

court’s oral pronouncement is inconsistent with the description of Special Condition

5 in the written judgment.

For the purpose of reviewing Durham’s plain error challenge, we assume that

Special Condition 5 is limited to what the district court pronounced at sentencing;

specifically: “A fifth added condition will be the defendant shall not access the

internet from any location without prior approval by the probation office and for a

justified and not prohibited reason. The defendant, however, shall not have internet

access at his residence.” As Durham recognizes, albeit with a little equivocation, our

decision in United States v. Ristine, 335 F.3d 692 (8th Cir. 2003), precludes us from

applying a “relaxed” version of the plain error standard. (There is no dissent on this

point, see ante, at 23.) On the merits, we are not persuaded by Durham’s argument

that the district court committed plain error in imposing Special Condition 5. See

Kerr, 472 F.3d at 520-21 (“Plain error occurs if the district court deviates from a legal

rule, the error is clear under current law, and the error affects the defendant’s
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substantial rights.” (quoting United States v. Crose, 284 F.3d 911, 912 (8th Cir. 2002)

(per curiam))).

While a sentencing court has “wide discretion” to impose special conditions of

supervised release, such conditions must satisfy the requirements set out in 18 U.S.C.

§ 3583(d). United States v. Crume, 422 F.3d 728, 732-33 (8th Cir. 2005).

First, the special conditions must be “reasonably related” to . . . the

nature and circumstances of the offense, the defendant’s history and

characteristics, the deterrence of criminal conduct, the protection of the

public from further crimes of the defendant, and the defendant’s

educational, vocational, medical or other correctional needs. Second, the

conditions must “involve[] no greater deprivation of liberty than is

reasonably necessary” to advance deterrence, the protection of the public

from future crimes of the defendant, and the defendant’s correctional

needs. Finally, the conditions must be consistent with any pertinent

policy statements issued by the [United States Sentencing Commission].

Id. at 733 (second alteration in original) (citations omitted).

Durham does not argue that Special Condition 5 is inconsistent with any

pertinent policy statement. And there is no real doubt that restricting Durham’s access

to the Internet is reasonably related to the nature and circumstances of the

offense—which, at a minimum, involved using LimeWire to acquire a large collection

of child pornography. See United States v. Bender, 566 F.3d 748, 751 (8th Cir. 2009);

United States v. Mark, 425 F.3d 505, 509 (8th Cir. 2005). Moreover, we are satisfied

that the challenged condition is designed to deter similar criminal conduct, to protect

the public from further crimes that Durham might otherwise perpetrate, and to serve

Durham’s correctional needs. See Bender, 566 F.3d at 751; Mark, 425 F.3d at 509.

The question, then, is whether Special Condition 5 involves a greater

deprivation of liberty than is reasonably necessary under the circumstances. We are
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convinced that the answer is “no,” for two principal reasons. First, Special

Condition 5 does not amount to a complete ban on Internet access. Contra ante, at 25.

In fact, the condition permits Durham to access the Internet as long as he obtains

permission from the probation office. In reviewing similar conditions, we have found

that restrictions on computer use and Internet access do not constitute a “total ban”

where the defendant can seek permission from his probation officer to perform the

restricted activities. See United States v. Fields, 324 F.3d 1025, 1027 (8th Cir. 2003);

see also Bender, 566 F.3d at 751-52 (upholding a so-called “ban” on computer use

and Internet access, in part because “[t]he ban allows [the defendant] to use a

computer and internet with the permission of his probation officer”); Ristine, 335 F.3d

at 695-96 (upholding a condition prohibiting the defendant, Ristine, from “owning or

operating” a computer without the permission of his probation officer, in part because

“Ristine—like the Fields defendant—is not wholly barred from using a computer”).

Thus, Special Condition 5 must be treated as merely a partial deprivation of Durham’s

interest in having unfettered access to the Internet.

Second, this is not a case in which “the record is devoid of evidence that [the

defendant] has ever used his computer for anything beyond simply possessing child

pornography.” Cf. Crume, 422 F.3d at 733. On the contrary, the record includes

much evidence showing that Durham used his computer to distribute child

pornography. See supra Part I. Even if one believes that the enhancement under

section 2G2.2(b)(3)(F) should not have been applied due to Durham’s alleged

ignorance, it is still beyond dispute that at least 59 files containing known or suspected

depictions of child pornography were posted on LimeWire—and therefore made

accessible to the public—by a computer user whose Internet Protocol address was

traced back to Durham’s home.

Our precedents in this area establish that district courts may impose more

restrictive conditions where, as here, a defendant’s offense involved distribution of

child pornography. See Ristine, 335 F.3d at 696; Fields, 324 F.3d at 1027; see also
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Kerr, 472 F.3d at 523 (“We have found [that] child pornography distribution offenses

are more serious than mere possession offenses.” (citing Fields, 324 F.3d at 1027)).

Because Special Condition 5 permits Durham to access the Internet as long as he

obtains permission from the probation office, we see no sound basis for concluding

that the condition involves a greater deprivation of liberty than is reasonably necessary

under the circumstances. We therefore hold that the district court did not abuse its

discretion, much less plainly err, in imposing Special Condition 5.

All that remains is to determine whether the district court’s oral pronouncement

is inconsistent with its written description of Special Condition 5. Recall that at

sentencing, the district court said the following: “A fifth added condition will be the

defendant shall not access the internet from any location without prior approval by the

probation office and for a justified and not prohibited reason. The defendant,

however, shall not have internet access at his residence.” One day later, the district

court entered a written judgment, which describes Special Condition 5 as follows:

“The defendant shall not have access to an internet-connected computer or other

device with internet capabilities or access the internet from any location without prior

approval by the probation office and for a justified reason. The defendant shall not

have internet access at his residence.” (Emphasis added.) Durham suggests that the

written judgment conflicts with the oral pronouncement because it broadens the

restriction to extend to a vast array of modern devices, including many cell phones,

portable media players, and televisions, among other things. The panel unanimously

agrees that Durham’s suggestion is correct. See ante, at 22.

Our cases make clear that “[w]here an oral sentence and the written judgment

conflict, the oral sentence controls.” United States v. Foster, 514 F.3d 821, 825 (8th

Cir. 2008) (quoting United States v. Glass, 720 F.2d 21, 22 n.2 (8th Cir. 1983)). In

this instance, we resolve the discrepancy by remanding with instructions to amend the

relevant portion of the written judgment to conform to the oral pronouncement. See,
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e.g., United States v. Alburay, 415 F.3d 782, 788 (7th Cir. 2005); United States v.

Martinez, 250 F.3d 941, 942 (5th Cir. 2001) (per curiam).

III.

In summary, I join Parts II.B.1 and II.B.2 of Judge Bye’s partial majority

opinion, but I respectfully dissent from the outcome and rationale set forth in Part

II.A. As to Special Condition 5, this opinion announces the judgment of the court.

We conclude that the district court did not commit plain error in imposing Special

Condition 5, but we remand with instructions to amend the written judgment to

conform to the district court’s oral pronouncement.

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