RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 17a0106p.06 

### UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

U NITED S TATES OF A MERICA , Plaintiff-Appellee ,

v

.

B RET A. D UNNING , Defendant-Appellant

. ┐ │ │ │ │ │ │ │ ┘ No. 16-5164

Appeal from the United States District Court for the Eastern District of Kentucky at Pikeville. No. 7:15-cr-00004—Danny C. Reeves, District Judge. Argued: October 20, 2016 Decided and Filed: May 18, 2017 Before: MERRITT, BATCHELDER, and ROGERS, Circuit Judges.

_________________ COUNSEL
ARGUED: Athanasia N. Lewis, GLENN MARTIN HAMMOND LAW OFFICE, Pikeville, Kentucky, for Appellant. Daniel E. Hanc ock, UNITED STATES A TTORNEY’S OFFICE, Lexington, Kentucky, for Appellee. ON BRIEF: Stephen W. Owens, Pikeville, Kentucky, for Appellant. Daniel E. Hancock, Charles P. Wisdom Jr., UNITED STATES ATTORNEY’S OFFICE, Lexington, Kentucky, for Appellee. BATCHELDER, J., delivered the opinion of the court in which ROGERS, J., joined. MERRITT, J. (pp. 11–13), delivere d a separate dissenting opinion. 

### >No. 16-5164 United States v. Dunning Page 2

_________________ OPINION

_________________ ALICE M. BATCHELDER, Circuit Judge. Br et Dunning was indicted for knowingly receiving and possessing child po rnography in violation of 18 U.S. C. § 2252(a)(2) and (a)(4)(B). He moved to compel discovery and to suppress ev idence that the police seized from his home. After the district court denied his motions and his request for an evid entiary hearing, Dunning entered into a conditional plea ag reement, preserving his right to appeal and pleading guilty to one count of knowingly receiving material i nvolving the sexual exploitation of minors in violation of 18 U.S.C. § 2252(a)(2). The di strict court sentenced him to 165 months’ imprisonment. Dunning argues on appeal that the district court erred by denying his motion to suppress evidence, that 18 U.S.C. § 2252 is unconstitutiona lly vague because it provides a stiffer penalty for receipt than for possession of child pornography, and that his sentence is procedurally and substantively unreasonable. We AFFI RM his conviction and sentence.

I. Facts A Kentucky State Police Detective twice used Nordic Mule, a program that is part of a law enforcement software package known as the Ch ild Protection System (CPS), to search for IP addresses that had recently shared child pornog raphy on the peer-to-peer file-sharing network eDonkey (a.k.a. eMule). The software locates sp ecified files on public peer-to-peer networks and records the IP addresses that have downloaded and made available for sharing files containing child sexual exploitation. When the software finds shared materials on these public networks, it logs the “date, time, hash values, filename, and IP address.” After the second CPS inquiry and report, the detec tive obtained a search warra nt for Dunning’ s residence. During the execution of the search warrant , the police seized numerous electronic devices, including computers, iP hones, and iPads, which contained over 22,000 images and videos depicting the sexual e xploitation of minors. Some imag es showed prepubescent children engaged in sexually explicit conduct with adults.No. 16-5164 United States v. Dunning Page 3

After his indictment, Dunning moved for discovery, seeking, among other things, the source code for the software that the detectiv e relied on for the search warrant. The court ordered a response to Dunning’s motion and the government responded, sta ting with regard to the software that: The program [the] Detective [] used when conducting his search for CP images is part of the Child Rescue Coalition, wh ich is a private non-profit organization. The source code and program are proprieta ry and are not in the possession of the United States. The data base [sic] used in this case evolved from the program formerly known as the Wyoming tool. The court then denied without prejudice Dunni ng’s motion for discovery. Dunning also moved to suppress evidence that the police seized from his home, arguing that the warrant application was not supported by probable cause because the det ective used software of uncertain reliability and accuracy to obtain the warrant, and that he had a reasonable expectation of privacy in the files stored on his computer. The districtcourt denied Dunning’s motion to suppress. Dunning then pled guilty to a violation of 18 U.S.C. § 2252(a)(2) for knowingly receiving material involving the se xual exploitation of minors, a nd the district court sentenced him to 165 months’ imprisonment. This appeal followed. II. Motion to Suppress

“The Fourth Amendment re quires that search warrants be issued only ‘upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.’” Dalia v. United States , 441 U.S. 238, 255 (1979). To establish probable cause, the issuing judge must “make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, . . . there is a fair probability that contraband or evidence of a crime will be found in a particular place.” Illinois v. Gates , 462 U.S. 213, 238 (1983). “In reviewing a ruling on a motion to suppres s, we will uphold a district court’s factual findings unless they are clearly erroneous, but w ill conduct a de novo review of a district court’s legal determinations.” United States v. Navarro-Diaz , 420 F.3d 581, 584 (6th Cir. 2005). “When reviewing the denial of a motion to suppre ss evidence, the appellate court must considerNo. 16-5164 United States v. Dunning Page 4

the evidence in the light most favorable to the government.” Id . We review the totality of the circumstances to determine whether pr obable cause supported a search warrant, Gates , 462 U.S. at 230–31, and we afford great defe rence to the issuing judge’s de termination of probable cause, United States v. Greene , 250 F.3d 471, 478 (6th Cir. 2001) (citing United States v. Allen , 211 F.3d 970, 973 (6th Cir.), cert. denied , 531 U.S. 907 (2000)). Dunning argues that because probable cause did not support the search warrant the district court erred by denying hi s motion to suppress. He clai ms that conclusions in the detective’s affidavit were wholly conclusory because the detective had relied on computer software results to identify child pornography f iles. Although wholly conclusory statements would fail to meet the probable cause requirement, see Gates , 462 U.S. at 239, the detective’s statements in this case were not wholly conclusory.

The detective in this case submitted an affida vit to a state circuit judge in support of his application for a warrant to search Dunning’s home . In the affidavit, the detective set out his training and experience as well as his use of “law enforcement systems to query IP addresses in Kentucky that had been seen sharing child se xual exploitation files.” Dunning claims that because the detective did not have the source code for the computer program, “it [was] not possible to authenticate the function of the app lication or validate its ‘calibration’” and that “statements contained within his search warrant affidavit [were] therefor e ‘wholly conclusory,’ because he did not have enough information to subs tantiate his claims without the source code.” A defendant who challenges the factual asse rtions in an affidavit supporting a search warrant is entitled to an evidentiary hearing if (1) the defendant makes a substantial preliminary showing that the affiant engaged in deliberate falsehood or reck less disregard for the truth in omitting information from the affidavit, and (2) a finding of probable cause would not be supported by the affidavit if the omitted mate rial were considered to be a part of it.
United States v. Fowler , 535 F.3d 408, 415 (6th Cir. 2008). This court has joined the First Circuit in rejecting the argument that a higher degree of certainty is required when the government uses software to locate IP addresses. See United States v. Schumacher , 611 F. App’x 337, 340 (6th Cir.), cert. denied , 136 S. Ct. 434 (2015) (citing United States v. Chiaradio,No. 16-5164 United States v. Dunning Page 5

684 F.3d 265, 279 (1st Cir. 2012), which held that the defendant failed to establish any way in which omission of certain information in the search warrant affidavit was material to a finding of probable cause). As in Schumacher , the omission of information regarding the reliability of the CPS software does not call into question the relia bility of this software and does not provide grounds for an evidentiary hearing. Furthermore, it is arguable th at such information would have only strengthened the affida vit by showing that the so ftware was reliable. See Schumacher , 611 F. App’x at 340.
As the district court held, the detective was trained to us e, and had previously used, software to investigate child po rnography crimes, and he identifie d and confirmed that the files containing child pornography had been shared by Dunning’s IP address on various dates. Moreover, Dunning failed to make even a prel iminary showing that the detective knowingly, intentionally, or recklessly made false statements in his affidavit. Dunning also argues that the de tective’s use of the software to find his IP address is similar to the use of the drug-sniffing dog in Florida v. Harris , 133 S. Ct. 1050 (2013), and that he should have had the same opportunity to challe nge the software’s reliability as the defendant had in Harris “to challenge such evidence of a dog’s reliability, whether by cross-examining the testifying officer or by introducing his own fact or expe rt witnesses.” Id . at 1057. But the analogy falls far short. The CPS software mere ly combs through large amounts of data and takes note of when and what IP address downloade d suspect material. As the Second Circuit explained in United States v. Thomas , [t]raditionally, law enforcement officers seek to detect child po rnography offenses by manually sending out search queries for il licit material over P2P [peer to peer] networks, one-by-one. CPS automates this process by canvassing these public P2P networks, identifying f iles that contain child pornography, cataloguing this information, and providing law enforcement officers with a list of the online users who are sharing these files over P2P networks. 788 F.3d 345, 348 (2d Cir. 2015), cert. denied , 136 S. Ct. 848 (2016). Unlike a drug-sniffing dog, whose potential errors law enforcement might not be able to detect without more invasive search, CPS merely records information it fi nds on public peer-to- peer networks, thusNo. 16-5164 United States v. Dunning Page 6

automating law enforcement’s task of combing through those public networks, a task that law enforcement could do in real time using publicly available tools. Id . at 352-53. III. Unconstitutional Vagueness It is elementary when the constitutionality of a statute is assaile d, if the statute be reasonably susceptible of two interpre tations, by one of which it would be unconstitutional and by the other valid, it is our plain duty to adopt that construction which will save the statute from constitutional infirmity. . . . [T]he rule plainly must mean that where a stat ute is susceptible of two constructions, by one of which grave and doubtful constitutional questions arise and by the other of which such questions are avoided, ou r duty is to adopt the latter. United States ex rel. Attorney General. v. Delaware & Hudson Co. , 213 U.S. 366, 407–08 (1909). “To survive a challenge of unconstituti onal vagueness in applic ation, a penal statute must ‘define the criminal offense with sufficien t definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary or discriminatory enforcement.’” United States v. Search of Music City Mktg., Inc. , 212 F.3d 920, 924–25 (6th Cir. 2000) (quoting Posters ‘N’ Things, Ltd. v. United States , 511 U.S. 513, 526 (1994)). Although the [void-for-vague ness] doctrine focuses bot h on actual notice to citizens and arbitrary enforcement, we have recognized recently that the more important aspect of the vagueness doctrin e ‘is not actual no tice, but the other principal element of the doctrine—the requirement that a legislature establish minimal guidelines to govern law enforcem ent.’ Where the legislature fails to provide such minimal guidelines, a crim inal statute may permit ‘a standardless sweep [that] allows policemen, prosecutors , and juries to pursue their personal predilections.’
Kolender v. Lawson , 461 U.S. 352, 357–58 (1983) (altera tion in origin al) (citing Smith v. Goguen , 415 U.S. 566, 574–75 (1974). Kolender held a California statue to be “unconstitutionally vague on its face because it encourages arbitrary enforcement by failing to describe with sufficient particularity what a susp ect must do in order to satisfy the statute.” Id. at 361. Unlike the statutes at issue in Kolender or Goguen , 18 U.S.C. § 2252 provides actual notice, and provides more than minimal gui delines to govern law enforcement. The government charged Dunni ng with two counts of receipt of child pornography in violation of 18 U.S.C. § 2252(a)(2 ) for images that he downloaded on two separate dates, andNo. 16-5164 United States v. Dunning Page 7

with one count of possessi on of those images in violation of 18 U.S.C. § 2252(a)(4)(B). Section 2252(a)(2) provides that “A ny person who—(2) knowingly receives , or distributes, any visual depiction . . . if—(A) the producing of such vi sual depiction involves the use of a minor engaging in sexually explicit conduct; and (B) such visual depiction is of such conduct; shall be punished as provided in subsection (b) of this se ction.” (emphasis added) Section 2252(a)(4)(B) provides that “Any person who—. . . (B) knowingly possesses , or knowingly accesses with intent to view” materials that involve the use of a minor engaging in se xually explicit conduct shall be punished according to subsection (b). (empha sis added). 18 U.S.C. § 2252 provides Dunning with fair notice of what act s are prohibited and the pena lties associated with them. Dunning argues that there is no difference between “receipt” and “possession,” and 18 U.S.C. § 2252 therefore allows law enforcement to arbitrarily enforce the law. But there is at least one difference between the two: a person who produces child pornography has not received it. It is true that prosecutors may charge a de fendant with both receipt and possession. But this is nothing more than permissible prosecutorial discretion. “In our criminal justice system, the Government retains ‘broad discreti on’ as to whom to prosecute.” Wayte v. United States , 470 U.S. 598, 607–08 (1985); see also Gardenhire v. Schubert , 205 F.3d 303, 319 (6th Cir. 2000). Although prosecutorial discretion is limited by constitutional constraints, such that the decision to prosecute may not be based on unjustifia ble standards such as race, religion, or other arbitrary classifications, the decision to prosecute Dunning u nder both sections in this case was not based on an unjustifiable standard. Furthermore, “while possessi on of child pornography is generally a lesser-included offense of receipt of child pornography, conviction unde r both statutes is permissible if separate conduct is found to underlie the two offenses.” United States v. Dudeck , 657 F.3d 424, 430 (6th Cir. 2011). In this case, the government ch arged Dunning for receipt when he downloaded images on March 9 and April 14, 2013, and with pos session for those images that he possessed on April 30, 2013.No. 16-5164 United States v. Dunning Page 8

IV. Sentence Dunning argues that his sentence is unrea sonable for two reasons : (1) the two-level enhancement that he received for distribution should not apply because there is no evidence that he knew that peer-to-peer soft ware shares files as it downloa ds them; (2) at sentencing, the district court did not give him an individualiz ed determination because it “relied heavily” on a study that suggests a correlation between looking at and touching minors. Dunning’s sentence of 165 months’ imprisonment falls within the Guid elines range of 151 to 188 months. The presentence report included a two-level enhan cement for distributing material involving the sexual exploitation of minors pur suant to USSG § 2G2.2(b)(3)(F), which the district court applied. “[T]he appellate court must review the sent ence under an abuse-of-discretion standard. . . . If the sentence is within the Guidelines range, the appellate court ma y, but is not required to, apply a presumption of reasonableness.” Gall v. United States , 552 U.S. 38, 51 (2007). A. Two-Level Enhancement for Distribution The Guidelines provide for an increase of two levels if the defe ndant knowingly engaged in distribution. USSG § 2G2.2(b)(3)( F). Distribution is defined as any act, including possession with intent to distribute, production, transmission, advertisement, and transporta tion, related to the transfer of material involving the sexual exploitation of a minor. Acco rdingly, 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. USSG § 2G2.2 comment. n.1. Dunning cites cases from the Second, Fourth, and Seventh Circuits to argue that a defendant must know th at his actions will make the files accessible to other users. See 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). But Sixth Circuit law states that “[t] he use of a file-sharing program like Ares readily ‘relate[s] to the transfer’ of files because the wh ole point of a file-sharing program is to share,No. 16-5164 United States v. Dunning Page 9

sharing creates a transfer, and tran sferring equals distribution.” United States v. Abbring , 788 F.3d 565, 567 (6th Cir.) (internal citation omitted), cert. denied , 136 S. Ct. 379 (2015). Dunning distinguishes Abbring by arguing that the defendant in that case admitted that he knew how the peer-to-peer software operated, thus resolving the requireme nt for the defendant’s knowledge. In this case, there is no direct evidence that shows that Dunning knew how the software operated because he made no admission that he knew how the peer-to-peer software worked. The court in Abbring recognized that the Eighth Circu it had “held that offenders using peer-to-peer file-sharing software may rebut [an] inference of knowing distribution with ‘concrete evidence of ignorance.’” Abbring , 788 F.3d at 568 (citing United States v. Durham , 618 F.3d 921, 931–32 (8th Cir. 2010), which stated th at “unless a defendant presents ‘concrete evidence of ignorance,’ the fact-finder may reasona bly infer the defendant utilized a file-sharing program to distribute files” (int ernal citation omitted)). But in Abbring we noted that while this circuit has never so held, we had not needed to reach the question in th at case because Abbring had admitted that he knew how the peer-to-pe er software operated. Although Dunning has not admitted that he knew how peer-to-peer file-sharing software works, neither has he presented any evidence that he did not know that file-shari ng software shares—and thus distributes—files. Not only could the fact-finder have reasonably inferred that Dunning knew that his use of a filesharing program distributed files, Dunning’s ar gument that he removed the files from the software so that others would no longer have acce ss to them undermines hi s argument that he did not know that the file-sharing software shares files. Dunning’s knowing use of peer-to-peer software justifies the distribution enhancement. Dunning used peer-to-peer software to download files, and while he was doing so, he was also sharing these files with others. He presented no evidence that he was ignorant of the software’s sharing function, and the distri ct court reasonably applied the two-level enhancement for distribution. B. Substantive Reasonableness in Ligh t of Reference to Butner Study We presume that a within-range se ntence is substantively reasonable. United States v. Vonner , 516 F.3d 382, 389 (6th Cir. 2008). And “[t]he defendant shoulders the burden ofNo. 16-5164 United States v. Dunning Page 10

showing substantive unreasonableness.” United States v. Woodard , 638 F.3d 506, 510 (6th Cir. 2011). Dunning argues that he did not receive an individualized determination because the court allegedly improperly relied on the Butner study 1 when sentencing him. The Butner study suggested that a correlation ex ists between those who look at child pornography and those who have had physical contact with children. Although Dunning claims that the court relied heavily on the Butner study in reaching the sentence, the re cord demonstrates that this study is one of many factors that the court cons idered in determining the sent ence. Furthermore, Dunning’s sentence of 165 months’ imprisonment fa lls within the guideline range. See Vonner , 516 F.3d at 389; Gall , 552 U.S. at 49.

V. Conclusion For the foregoing reasons, we AFFI RM Dunning’s conviction and sentence.

1 Michael L. Bourke & Andres E. Hernandez, The “B utner Study” Redux: A Report of the Incidence of Hands-on Child Victimization by Child Pornography Offenders, 24 J. Fam. Violence 183 (2009).No. 16-5164 United States v. Dunning Page 11

_________________ DISSENT

_________________ MERRITT, Circuit Judge, dissenting. This di ssent is addressed to Section III of the Court’s opinion concerning “receipt” and “po ssession” of child porn ography. The opinion allows a 13 ଷ ସ year sentence for “receiving” instead of a much lesser sentence for “possessing.” The disparity is the result of a curious mistak e by Congress in treating them as different. Semantically, “receiving” pornography from another and “possessing” porn received from another are synonymous. That is obvious. The f act that Congress has made this mistake does not bind us to continue it. The irrational distinction behind punishing “rec eipt of” differently than “possession of” child pornography should be set as ide and the case remanded for re sentencing. In 2012, the U.S. Sentencing Commission issued a report to Congress regarding the punishment of child pornography offenses. 1 With respect to the separate cr imes of “receipt” and “possession” of child pornography, the Commission found “[t]here is no rational basis to treat receipt offenses (which carry a mandatory minimum five-year te rm of imprisonment) and possession offenses (which do not carry a mandatory minimum te rm of imprisonment) differently under the guidelines or penal statutes.” Id. at 13 (emphasis added). The crime of “receipt” for first-time offenders also carries a maximum penalty of twenty years in prison, while the crime of “possession” carries a maximum of ten years. See 18 U.S.C. § 2252(b). The defendant in this case was charged with both receipt and possession of child pornogra phy, eventually pleading to one count of receipt. 18 U.S.C. §§ 2252(a)(2), 2252(a)(4)(B). The Sentencing Commission is certainly correct that having two disproportionate statutory and guideline sentencing schemes for the same conduct is irrational. St atutes that invite ar bitrary and irrational en forcement violate the due process of law. E.g. , Johnson v. United States, 135 S. Ct. 2551, 2556–57 (2015). As it is being applied here, 18 U.S.C. § 2252 (a)(2) violates due process.

1 U.S. Sentencing Comm’n, 2012 Report to the Congress: Federal Child Pornography Offenses (2012), http://www.ussc.gov/sites/default/file s/pdf/news/congressional-testimony-and -reports/sex-offense-topics/201212- federal-child-pornography-offenses/Full_Report_to_Congress.pdf.No. 16-5164 United States v. Dunning Page 12

This Court, when reviewing the imposition of a statute, must ensure that words and phrases are not so irrational, “so vague and inde finite that any penalty prescribed for their violation constitutes a denial of due process of law.” Champlin Ref. Co. v. Corp. Comm’n of State of Oklahoma , 286 U.S. 210, 243 (1932). Judge Posner describes § 2252 as a “puzzle,” and recognizes in United States v. Richardson that attempting to make sense of the statute is a futile exercise. 238 F.3d 837, 839 (7th Cir. 2001). The Richardson decision questions “why receiving, which under the first guideline and the statute that it implements . . . should be punished more severely than possessing, since possessors, unless they fabricate their own pornography, are also receivers.” Id. (internal citation omitted). Non-pr oduction offenders who knowingly possess child pornography necessarily receive it. See U.S. Sentencing Comm’n 2012 Report, at 13. The majority fails to recognize the irrationa lity of punishing receipt more harshly than possession, since possession is essentially identical to receipt unless it is associated with “production.” See Richardson, 238 F.3d at 839.

Section 2252’s contradictions were compounded by a mistake in semantics by Senators Thurmond and Helms in 1991. See Stephen Bacon, Note A Distinction Without a Difference , 65 U. Miami L. Rev. 1027, 1034–36 (2011). On July 18, 1991, a congressional amendment was introduced that upended the sentencing scheme recommended by the Sentencing Commission and resulted in th e disproportionate punishment of these two identical crimes. 2 The “HelmsThurmond Amendment,” which was proposed as an amendment to a 1991 appropriations bill, directed the Commission to reorganize “receipt ” offenses under § 2G2.2. See id . The Sentencing Commission sent a letter to Congress, defending their choice to tr eat “receipt” and “possession” similarly. See 137 Cong. Rec. H6736-02, 4 (1991) (l etter from Chairman Wilkens) (arguing that the amendment caused sentencing to turn on the timing of law enforcement intervention, rather th an on the gravity of the underlying c onduct). The Senate rejected these arguments and passed the amendment anyway. See U.S. Sentencing Comm ’n 2009 Report, at 20-22.

2 See U.S. Sentencing Comm’n, The History of the Child Pornography Guidelines , 19–20 (2009), http://www.ussc.gov/sites/default/f iles/pdf/research-and-publications/r esearch-projects- and-surveys/sexoffenses/20091030_History_Child_Pornography_Guidelines.pdf.No. 16-5164 United States v. Dunning Page 13

Since then, this “receipt” versus “possession” fiction has been reflected in the Sentencing Guidelines. See U.S.S.G. §§ 2G2.2, 2G2.4. The Unite d States Sentenci ng Commission continues to argue that there is no rational basis for applying the current Sentencing Guidelines, as they do not “distinguish adequately among offe nders based on their degrees of culpability.” U.S. Sentencing Comm’n 2012 Report, at 331. Th e Commission also crit icizes the “lack of proportionality in sentence length compared to typical sentences for many ‘contact’ sex offenders[,]” noting that “some child pornography offenders with no history of sexually abusing a child receive sentences equal to or greater than the sentences received by ‘contact’ sex offenders.” Id. at 13. The Department of Justice has al so come out against these Guidelines. See Joint Prepared Statement of James Fottrell, St eve Debrota, and Francey Hakes, U.S. Dep’t of Justice, to the Sentencing Comm’n, 8 (Feb. 15, 2012) (“...[P]rosecutors, probation officers, and judges are often assessing these cases using a guide line that does not account for the full range of the defendant’s conduct and also does not differe ntiate among offenders given the severity of their conduct”). The Criminal Law Commission of the Judicial Conference of the United States has argued strongly against both th e Guidelines and the mandatory minimums for these crimes. See Testimony of U.S. District J udge Casey Rodgers on Behalf of the Crim. Law Comm. of the Jud. Conf. of the U.S. Courts to th e Sentencing Comm’ n, 361–70 (Feb. 15, 2012). We should not continue to allow this comple tely irrational statute to send people to prison for such long, ridiculous sentences. Here th e defendant, Dunning, age 54, downloaded pictures of child pornography onto his computer. He did not touch or physically harm a child. He did not produce the pictures. He did not email them to anyone else. The evid ence discloses that he simply looked at them. For “receipt” of child pornography he was given 13 ଷ ସ years in prison. If sentenced for a “possession” offense, his time in prison would be greatly reduced.