United States Court of Appeals

For the Eighth Circuit

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No. 13-3691

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United States of America

lllllllllllllllllllll Plaintiff - Appellee

v.

Brian Lynch

lllllllllllllllllllll Defendant - Appellant

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 Appeal from United States District Court 

for the Northern District of Iowa - Cedar Rapids

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 Submitted: May 13, 2014

 Filed: July 7, 2014

[Published]

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Before RILEY, Chief Judge, BEAM and SMITH, Circuit Judges.

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PER CURIAM.

Brian Lynch pleaded guilty to possession of child pornography in violation of

18 U.S.C. § 2252. Lynch appeals his sentence of 210 months, specifically

challenging the five-level upward adjustment for distribution in expectation of a

"thing of value," see United States Sentencing Guidelines Manual § 2G2.2(b)(3)(B),

because he used file sharing programs to view the pornography. Lynch argues that
while he knew he was using the file-sharing programs Ares and Shareaza, he did not

know that others using Ares and Shareaza could access his files remotely, and thus

that any "distribution" that happened via these programs was unknowing on his part. 

In support of this assertion, he directs us to the transcript of his interview during the

initial encounter with law enforcement officers as they served the search warrant at

his home. Lynch argues that the transcriptshows his lack of knowledge of the remote

access/sharing function of Ares and Shareaza.

The determination of whether the five-level enhancement for distribution

applies is made on a case-by-case basis, with the government bearing the ultimate

burden of proof on this issue. United States v. Dolehide, 663 F.3d 343, 347 (8th Cir.

2011). The government may meet this burden with direct evidence (usually in the

form of an admission) or by circumstantial evidence such as a defendant's relative

computer sophistication. United States v. Durham, 618 F.3d 921, 927-29 (8th Cir.

2010). If the defendant has installed the file sharing program and used it himself, he

must show "concrete evidence" of his ignorance as to distribution. Dolehide, 663

F.3d at 347.

At the sentencing hearing, via testimony and the pre-sentence investigation

report, the government presented the following circumstantial evidence in support of

the enhancement: that undercover officers used a peer-to-peer file sharing network

to download images, remotely, from Lynch's computer, several different times in

2013; that Lynch kept folders on his desktop associated with the file sharing

programs, in which he kept child pornography images; and that Lynch installed and

began using the file-sharing programs to download child pornography since 2007. 

Furthermore, during the police interview, Lynch assessed his technical computer

knowledge as a 5-6 on a scale of 1-10. Lynch's "concrete evidence" of ignorance

consists of the initial police interview transcript, where, admittedly, he seemed

confused about the concept of how others might access his child pornography files

from their remotely located computers. Additionally, the agent who interviewed

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Lynch during thisinterview testified at the sentencing hearing that Lynch said several

times during the interview that Lynch didn't think he was sharing anything with

anybody else. Finally, the government's forensic computer examiner admitted there

was no evidence Lynch emailed or took any other affirmative steps to distribute the

child pornography images that he had downloaded.

The district court acknowledged that the five-level increase could not be added

1

simply by virtue of the fact that the Shareaza and Ares programs were on the

computer. However, the court made the following findings with regard to indirect

evidence of Lynch's knowledge: Lynch was "fairly" computer savvy, including the

fact that he had "defragmented" his computer to make it run faster; he had

downloaded the programs several years ago (in 2007 and 2008) and had been using

them since then; he was the only user of the computer; and the warnings from the

software manufacturers detailed the general operation of how shared files worked.

In reviewing the district court's advisory Guidelines calculation, we review the

district court's factual findings for clear error and its application of the Guidelines de

novo. United States v. Pappas, 715 F.3d 225, 228 (8th Cir. 2013). Given this

standard, we cannot say the district court clearly erred in its factual findings, despite

Lynch's, at times exculpatory and othertimes equivocal, answers about his knowledge

of file sharing during the police interview. The government presented sufficient

circumstantial evidence of Lynch's knowledge of distribution and the district court

did not clearly err in determining that Lynch's evidence of ignorance was not

"concrete." Noristhe within-Guidelines-range sentence substantively unreasonable. 

United States v. Huston, 744 F.3d 589, 593 (8th Cir. 2014). Accordingly, we affirm

the application of the five-level increase and the resulting sentence. 

The Honorable Linda R. Reade, Chief Judge, United States District Court for

1

the Northern District of Iowa.

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SMITH, Circuit Judge, concurring.

I write separately because I reach the same result as the per curiam but for a

different reason. The per curiam correctly explains that "[i]f the defendant has

installed the file sharing program and used it himself, he must show 'concrete

evidence' of his ignorance as to distribution." See supra (citing Dolehide, 663 F.3d

at 347). I would hold that the district court clearly erred in concluding that Lynch

failed to provide concrete evidence of his ignorance. However, any error was

harmless because the district court would have imposed the same sentence regardless

of the five-level distribution enhancement.

Lynch provided ample evidence showing that he thought he was merely

downloading child pornography rather than distributing it to others. See Durham, 618

F.3d at 929 (distinguishing between defendant's knowledge of downloading files and

uploading them). The evidence upon which he primarily relies to demonstrate his

ignorance is an interview transcript of his initial questioning. The per curiam labels

his interview responses as "at times exculpatory and other times equivocal." See

supra. The transcript provides:

Q: No. But I am saying what files you share with other people that

other people can share with you. How do you have that set up?

A: Well, I don't.

* * *

Q: OK. OK. Um, you don't have a certain folder on the computer that

you allow it to share?

A: No.

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Q: OK.

A. I don't believe I do.

* * *

Q. You know who all your—

A. I don't know. I didn't send anything to anybody. I just download

it.

* * *

Q. When was the last date you were file sharing?

A: But I am not sharing files.

* * *

Q. Is it turned on right now sharing right now?

A: I don't know. I mean—

Q: When you say you don't know. What do you mean?

A: Well you mean sharing as far as—

Q: Well, what I mean is that like I say I got files from you over the

weekend through Ares.

A: Un-huh.

Q: Through Ares. OK.

A: Sharing the files?

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Q: Right.

A: The folder is shared?

* * *

Q: What is the purpose of the Ares program? I mean why do you

have the Ares program?

A: The purpose of it?

Q: Yeah.

A: Just to download files.

Q: Download files. Now how does the Ares program work? Now

you, when you set up the Ares program then what happens?

A: Um, you can view files?

Q: OK. But then you, but you can also share, you can put files in a

folder on the computer for you to share with other people also,

correct?

A: Is that what well I don't know it says shared folder on there.

Q: OK.

A: But I don't share. I am not going back and forth and talking to

anybody.

Q: No, no no. But your computer is sharing it with other people.

They can. You are downloading stuff from other people.

A: Um-hum.

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Q: But you set it up so other people are downloading files from you

also or getting files from you correct?

A: All right.

Q: OK.

A: I assume, yeah.

Q: But how do you know what files you are sharing with the other

people?

A: How do I know, well I don't. I mean I just get into that and view

what I have on the computer.

* * *

Q: Yeah, so you are downloading from them and you share with

them so you can download from them is that correct?

A: Well, I am sure. I didn't know I was sharing. It says shared folder

there. So I assume that is what is happening.

Q: OK.

A: But no, all I am doing is just downloading just to see stuff.

* * *

Q: Now, we are looking at your computer so we are going to be able

to figure this out pretty quick. Have you ever sent any child

pornography other than the peer to peer file sharing; have you

ever sent it to anybody else?

A. No.

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Q. E-mail or anything like that?

A. No. (Slamming noise)

* * *

Q: And then, at that point you knew you were sharing your files with

other people?

A: At that point I thought those were my files. I downloaded and

kept.

Q: And then, you knew you were sharing those with other people?

A: I did not know that.

Q: OK.

A: I mean I was uncertain of that you know.

Q: OK, but you had an idea you were sharing, I got them from you?

A: I downloaded.

Q: You know what I am saying?

A: Right.

Q: So at some point you had to know that your files were going to

other people also.

A: Right.

Q: So, at what point did you know that?

A: Well, I mean I knew that I was getting them from someone else.

I didn't know. So when I was getting them, but I didn't create files

I just downloaded them for my own benefit.

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Q: Right.

A: So I thought you had to create the files and share them back and

forth.

Q: Right, but the files you downloaded other people were getting

correct?

A: Right.

Q: You knew that part?

A: That other people were getting?

Q: Right that other people were getting some of the files that you

were downloading yourself. Files that you downloaded to your

computer to your shared file.

A: I was getting other people's files that I downloaded for myself?

Q: Right, into your share file.

A: Right.

Q: And at that point people could get stuff out of—

A: I understand the process now, yeah. I did not know that.

A computer forensic examiner testified at the sentencing hearing that the

folders on Lynch's desktop associated with the file sharing programs were default

folders, meaning that the peer-to-peer programs created these folders without Lynch's

conscious action. The interviewing officer even testified that he told Lynch on three

occasions during the interview that he believed Lynch. The truthfulness of Lynch's

interview responses is heightened because the interview was voluntary and occurred

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at the first instance in which Lynch knew of the investigation. Furthermore, Lynch

had already admitted to possessing child pornography earlier in the interview.

This evidence, especially the interview transcript, reveal a confused defendant

who had no idea that he distributed, or made available, child pornography to other

users. Nonetheless, the per curiam properly upheld the district court's decision

because the district court explicitly stated that it would sentence Lynch to 210

months' imprisonment regardless of any error in Lynch's offense-level calculation.

The district court explained that it would vary upward to 210 months' imprisonment,

at least in part, because

[Lynch] has admitted hands-on offending against at least one child on

more than one occasion. When he worked at a juvenile facility, he met

a 16-year-old with whom he later had sex. He stated that that did not

occur until the boy was 18 and had been discharged from the juvenile

facility.

As I indicated, he admitted that in 2002 he had oral sex with a

child, age 15, 16, both at a park and at his home. This is uncharged

criminal conduct and very, very concerning considering the type of work

that he did prior to his arrest.

We have stated in the context of a Guidelines-calculation appeal that

even if [the defendant] were successful on any issues he raises on

appeal, the district court made sufficient findings that his final sentence

would be unchanged regardless of his guideline calculations. The

district court stated that "[i]n the event that the guidelines would fall

below 480 months, the Court would depart upward or vary upward to

480 months." Since the district court explicitly stated that it would have

imposed a 480 month sentence regardless of the guidelines, any error in

applying the guidelines would be harmless. See United States v. Davis,

583 F.3d 1081, 1094 (8th Cir. 2009).

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United States v. Pappas, 715 F.3d 225, 230 (8th Cir. 2013). In other words,

"misapplication of the guidelines would be harmless if 'the district court would have

imposed the same sentence had it not relied upon the invalid factor or factors.'"

United States v. Henson, 550 F.3d 739, 740 (8th Cir. 2008) (quoting Williams v.

United States, 503 U.S. 193, 203 (1992)). Because the miscalculation here was

harmless, I agree that we should affirm the district court's decision.

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