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- 4820

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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 TH E 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 C ourthouse, 40 Foley Square, in the City of New York, on the 12 th day of November, two thousand thirteen.

PRESENT: Ralph K. Winter ,

Rosemary S. Pooler , Denny Chin ,

Circuit Judges

.

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UNITED ST ATES 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 Attorney s , 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 principa lly 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 Guidelines3

application. See United States v. Legros , 529 F.3d 470, 47 4 (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 offen ses 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 i n 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 sh a red 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 mad e 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 di strict 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

furth er 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, arguin g "[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 conscious5

decision to activate 'file sharing' on his computer because he
received or expected t o 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 c hild 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

co nfirms 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 pornogra phy 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

un der § 2G2.2(b)(3)(B), that there wa s no evidence that he was

aw are "file sharing" was activated on his computer.

We ac knowledge that there is evidence in the record
that Reed was a sophisticate d and long

- time computer user.6

While these facts arguably could support an inference that Reed
knew he was placing files in a p eer - 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.