11-4820-cr

United States v. Reed

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO 

A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007 IS PERMITTED AND IS 

GOVERNED BY FEDERAL RULE OF APPELLAT E PROCEDURE 32.1 AND THIS COURT'S 

LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED 

WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN 

ELECTRONIC DATABASE (WITH THE NOTATION "SUMMARY ORDER"). A PARTY 

CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT 

REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals 

for the Second Circuit, held at the Thurgood Marshall United 

States Courthouse, 40 Foley Square, in the City of New York, on 

the 12th day of November, two thousand thirteen.

PRESENT: Ralph K. Winter,

Rosemary S. Pooler,

Denny Chin,

Circuit Judges.

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UNITED STATES OF AMERICA,

Appellee,

-v- 11-4820

JESSE REED,

Defendant-Appellant.

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FOR APPELLEE: Tamara B. Thompson and Brenda K. 

Sannes, Assistant United States 

Attorneys, for Richard S. Hartunian, 

United States Attorney for the Northern 

District of New York, New York. 
2

FOR DEFENDANT-APPELLANT: Charles F. Willson, Nevins Law Group 

LLC, East Hartford, Connecticut. 

Appeal from the United States District Court for the 

Northern District of New York (Mordue, J.).

UPON DUE CONSIDERATION, IT IS ORDERED, ADJUDGED, AND 

DECREED that the judgment of the district court is VACATED and 

the case is REMANDED for further proceedings.

Defendant-appellant Jesse Reed pled guilty, without a 

plea agreement, to one count of receipt of child pornography, in 

violation of 18 U.S.C. § 2252A(a)(2)(A), and one count of

possession of child pornography, in violation of 18 U.S.C. 

§ 2252A(a)(5)(B). The district court (Mordue, J.) sentenced 

Reed principally to 120 months' imprisonment on each count, to 

be served concurrently. 

On appeal, Reed challenges the procedural 

reasonableness of his sentence, specifically the district 

court's two-level increase in his offense level pursuant to U.S. 

Sentencing Guidelines Manual ("U.S.S.G." or "Guidelines") 

§ 2G2.2(b)(3)(F). We apply de novo review to the district 

court's rulings on questions of law, including Guidelines 

interpretation, and clear-error review to its rulings on 

questions of fact, including those that inform Guidelines 
3

application. See United States v. Legros, 529 F.3d 470, 474 (2d 

Cir. 2008).1 

We assume the parties' familiarity with the underlying 

facts, the procedural history of the case, and the issues 

presented for review.

Section 2G2.2(b)(3) of the Guidelines provides a range 

of enhancements for child pornography offenses involving 

distribution. A five-level enhancement applies if the offense 

involved distribution "for the receipt, or expectation of 

receipt, of a thing of value, but not for pecuniary gain." 

§ 2G2.2(b)(3)(B). Pursuant to § 2G2.2(b)(3)(F), a two-level 

enhancement applies if the offense involved distribution other 

than distribution described in § 2G2.2(b)(3)(A) through (E).

We recently held in United States v. Reingold, 731 

F.3d 204 (2d Cir. 2013), that the distribution enhancement under 

U.S.S.G. § 2G2.2(b)(3)(F) applies when a defendant "knowingly 

plac[es] child pornography files in a shared folder on a 

peer-to-peer file-sharing network . . . even if no one actually 

obtains an image from the folder." Id. at 229 (internal 

quotation marks and citation omitted). Accordingly, while there 

is no requirement of intent to distribute for § 2G2.2(b)(3)(F) 

 

1 The government argues that plain error review applies as Reed did 

not specifically object to the two-level enhancement. We disagree. Reed 

made a lack of knowledge argument in opposing the five-level enhancement. 
4

to apply, there is a knowledge requirement: the defendant must 

know that depositing files into the folder will make the files 

available to others. Indeed, we observed that the record in 

Reingold made "plain that [defendant] . . . knew from the start 

that distribution was a necessary condition of 

receipt . . . and, with that knowledge, took deliberate and 

purposeful actions to effect that distribution." Id. (internal 

citations omitted). 

Reed argues that there is insufficient evidence to 

support the district court's application of a two-level 

enhancement pursuant to § 2G2.2(b)(3)(F). We do not decide the 

legal sufficiency of the evidence, but we remand for further 

proceedings. Where, as here, the district court failed to make

a finding of fact necessary to apply an enhancement under the 

Guidelines, we vacate the sentence and remand the case for

further proceedings. See, e.g., United States v. Scotti, 47 

F.3d 1237, 1251-52 (2d Cir. 1995). 

The pre-sentence report recommended a five-level 

enhancement pursuant to § 2G2.2(b)(3)(B). In his sentencing 

memorandum, Reed objected to the enhancement, arguing "[t]here 

is no proof in the probation report or in any of the discovery 

materials . . . that Mr. Reed was aware of or made a conscious 
5

decision to activate 'file sharing' on his computer because he 

received or expected to receive something of value." At

sentencing, the district court agreed that the five-level 

enhancement was unwarranted "because there is no evidence that 

[Reed] shared or distributed child pornography in anticipation 

of or while reasonably believing in the possibility of the 

receipt of child pornography in return." Instead, the district 

court explained it was applying the two-level enhancement 

pursuant to § 2G2.2(b)(3)(F) "because the forensic evidence 

confirms that more than 600 image and video files of child 

pornography were located in peer-to-peer sharing folders on 

[Reed's] computer and these files are being offered for 

sharing." 

The district court did not, however, make any finding 

as to whether Reed "knowingly plac[ed]" child pornography files 

into shared folders. Reingold, 731 F.3d at 229 (internal 

quotation marks and citation omitted). Indeed, Reed 

specifically argued, albeit in the context of the enhancement 

under § 2G2.2(b)(3)(B), that there was no evidence that he was 

aware "file sharing" was activated on his computer. 

We acknowledge that there is evidence in the record

that Reed was a sophisticated and long-time computer user. 
6

While these facts arguably could support an inference that Reed

knew he was placing files in a peer-to-peer sharing folder, the 

district court did not make such a finding, as Reingold

requires. We remand in accordance with the procedures of United 

States v. Jacobson, 15 F.3d 19, 22 (2d Cir. 1994), for the 

district court to consider the question, after giving the 

parties an opportunity to be heard.2 

Accordingly, we VACATE the judgment of the district 

court and REMAND the case for further proceedings as consistent 

with this order. 

FOR THE COURT:

Catherine O'Hagan Wolfe, Clerk

 

2 In the interest of judicial economy, this panel will retain 

jurisdiction over any subsequent appeal. See Jacobson, 15 F.3d at 22. 

Accordingly, either party may notify the Clerk of a renewed appeal within 

fourteen days of the district court's decision.