United States Court of Appeals For the First Circuit

No. 17-1577

UNITED STATES OF AMERICA,

Appellee,

v.

RICARDO MONTAÑEZ-QUIÑONES,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO

[Hon. Carmen Consuelo Cerezo, U.S. District Judge]

Before

Thompson, Selya, and Lipez, Circuit Judges.

Jane Elizabeth Lee for appellant. Julia M. Meconiates, Assistant United States Attorney, with whom Rosa Emilia Rodriguez-Velez, United States Attorney and Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate Division, were on brief, for appellee.

December 21, 2018 SELYA, Circuit Judge. Defendant-appellant Ricardo

Montañez-Quiñones seeks to set aside his 109-month sentence for

possession of child pornography. In support, he both reproves the

government for allegedly violating the plea agreement through its

overzealous advocacy at sentencing and reproves the district court

for enhancing his offense level through an allegedly erroneous

finding that he knowingly distributed child pornography.

Concluding, as we do, that neither claim of error withstands

scrutiny, we affirm the challenged sentence.

I. BACKGROUND

We briefly rehearse the facts and travel of the case.

Because this appeal follows a guilty plea, we draw our account

from the plea agreement, the undisputed portions of the pre-

sentence investigation report (PSI Report), and the transcripts of

the change of plea and sentencing hearings. See United States v.

Coleman,

(1st Cir. 2018).

On September 20, 2015, as part of an investigation of

pornography sharing on Ares (a peer-to-peer file-sharing network),

a computer forensic laboratory associated with the Department of

Homeland Security (DHS) successfully downloaded a seven-minute

video that depicted a sexual encounter between a young girl

(approximately eight to ten years of age) and an adult man. DHS

agents traced the file to the residence of the defendant in Gurabo,

Puerto Rico, and executed a search warrant for that address. The

- 2 - agents seized two devices: a laptop computer and a desktop

computer.

The seized computers collectively housed 1,072 child sex

abuse images. Those images showed boys and girls between four and

fourteen years of age performing oral sex on adult men and being

vaginally and anally penetrated by adult men. The agents' analysis

also revealed an additional 3,613 child sex abuse files, which had

either been downloaded and erased or were incomplete downloads, 89

child sex abuse files being shared on Ares, and at least 48 search

terms related to child sex abuse.

In due course, a federal grand jury sitting in the

District of Puerto Rico handed up an indictment charging the

defendant with two counts of transportation of child pornography

and one count of possession of child pornography (including images

of prepubescent minors engaged in sexually explicit conduct). 18

U.S.C. § 2252A(a)(5)(B), (b)(2). Although the defendant

originally maintained his innocence, he eventually executed a non-

binding plea agreement, see Fed. R. Crim. P. 11(c)(1)(B), and

entered a guilty plea to the charge of possession of child

pornography. In exchange for the defendant's plea, the government

agreed to dismiss the remaining two counts.

In the plea agreement (the Agreement), the parties

agreed to a total offense level of 28, which included a two-level

enhancement for distribution, see USSG §2G2.2(b)(3)(F), and a

- 3 - three-level enhancement premised on a stipulation that the offense

of conviction involved between 150 and 300 offending images, see

USSG §2G2.2(b)(7)(B). These stipulations were not intended to

bind the sentencing court, see Fed. R. Crim. P. 11(c)(1)(B), and

the Agreement contained no stipulation as to the defendant's

criminal history category (CHC). The parties nonetheless agreed

that, with a CHC of I, the guideline sentencing range would be 78-

97 months; that the defendant could argue for a sentence at the

low end of that hypothetical range; and that the government could

argue for a sentence up to 87 months (the mid-point of the

hypothetical range).1

The probation officer offered a slightly different

assessment. The PSI Report calculated the defendant's total

offense level at 30 based on a finding that the defendant possessed

600 or more offending images. With a CHC of I, the applicable

guideline sentencing range would be 97-121 months. In his

objections to the PSI Report, the defendant took issue with its

inclusion of the two-level enhancement for knowing distribution.

Although the same enhancement had been contemplated by the

Agreement, the defendant argued that there was a critical

distinction: since executing the Agreement, USSG §2G2.2(b)(3)(F)

1 The parties agree that the government remained bound to this ceiling even if the district court — as happened here — determined that a more onerous guideline sentencing range applied.

- 4 - had been amended to include a mens rea requirement. See USSG App.

C, Amend. 801 (effective Nov. 1, 2016). The defendant argued that

there was too little evidence to satisfy this new requirement.

Specifically, he asserted that in order to prove knowing

distribution, the government was obliged to introduce "evidence

concerning the operation of the specific file sharing program used

in the present case" and that it had failed to do so.

The district court was not persuaded that so precise an

evidentiary showing was necessary to ground the enhancement. It

overruled the defendant's objection based on its determination

that "the evidence on record showed that defendant knew of the

file-sharing properties of the 'Ares' program." In this regard,

the court noted that the defendant was a "sophisticated and long-

time computer user." This background, which included the

defendant's degrees in computer science and computer networks and

his statements that he was skilled in computers and would like to

pursue an advanced degree in computer networks, was sufficient to

infer the requisite knowledge. To cinch matters, the defendant

had stored a portion of his downloaded child sex abuse files to a

"shared" folder, indicating that he had curated "the particular

contraband that he wanted to exchange through the 'Ares' file-

sharing program."

After the court upheld the propriety of the knowing

distribution enhancement, the disposition hearing proceeded. In

- 5 - accordance with the Agreement, the defendant argued for a sentence

of 78 months (the low end of the hypothetical guideline range

stipulated to by the parties). The government argued for a

sentence of 87 months (the mid-point of the hypothetical range).

In support of his argument, the defendant emphasized his difficult

childhood and a history of abuse. The government countered that

the defendant's conduct had helped to support an industry that

"feeds on the sexual abuse and torture of children."

When all was said and done, the district court refused

to accept the parties' stipulated guideline range. Instead, it

embraced the guideline calculations contained in the PSI Report,

which included a higher offense level that added five levels for

possession of 600 or more offending images. Using a total offense

level of 30 and a CHC of I, the court adopted a guideline sentencing

range of 97-121 months. It proceeded to sentence the defendant to

a mid-range 109-month term of immurement. This timely appeal

ensued.

II. ANALYSIS

In this venue, the defendant attacks his sentence on two

fronts. First, he contends that the government breached the terms

of the Agreement by failing to advocate for the bargained-for

sentence. Second, he contends that the district court's finding

that he knowingly distributed child pornography was in error. We

examine each contention in turn.

- 6 - A. Alleged Breach of Plea Agreement.

The defendant begins by asseverating that statements

made by the prosecutor during the disposition hearing, along with

statements that the government failed to make, comprised a breach

of the Agreement. This asseveration breaks new ground, as the

defendant failed to mount this claim of error below. Consequently,

our review is only for plain error — "a formidable standard of

appellate review." United States v. Saxena,

(1st

Cir. 2000); see United States v. Almonte-Nuñez,

(1st Cir. 2014) (citing Puckett v. United States,

(2009)). Under this standard, an appellant bears the burden

of showing "(1) that an error occurred (2) which was clear or

obvious and which not only (3) affected the defendant's substantial

rights, but also (4) seriously impaired the fairness, integrity,

or public reputation of judicial proceedings." United States v.

Duarte,

(1st Cir. 2001). Within this rubric, an

appellant's substantial rights are deemed to be affected only when

an error "likely affected the outcome of the proceedings."

Almonte-Nuñez,

.

It cannot be gainsaid that "[a] plea agreement is a

binding promise by the government and is an inducement for the

guilty plea." United States v. Gonczy,

(1st Cir.

2004) (citing Santobello v. New York,

(1971)).

It follows that "a failure to support that promise is a breach of

- 7 - the plea agreement, whether done deliberately or not."

Because a defendant waives a panoply of constitutional rights by

entering into a plea agreement, we hold the government to "the

most meticulous standards of both promise and performance."

Correale v. United States,

(1st Cir. 1973).

Simply providing "lip service" to these solemn obligations will

not suffice. Saxena,

.

Before us, the defendant asserts that the government

violated the Agreement because it did not assiduously advocate for

the bargained-for sentence and made a bad situation worse by

misrepresenting the number of offending images stipulated in the

Agreement. Some further facts are needed to put the assertion

into perspective.

The government had agreed to recommend an incarceration

sentence of no more than 87 months. At the disposition hearing

the prosecutor stated, consistent with this agreement, on no fewer

than five occasions that the government was recommending a sentence

of 87 months. The defendant views these repeated recommendations

as hollow: he points out that the prosecutor did not mention the

total offense level of 28 referenced in the Agreement but, rather,

stated (incorrectly) that the parties had stipulated to 300 to 600

offending images. Furthermore, the defendant claims that the

prosecutor "excoriated [him] and condemned his conduct in the

strongest terms," thereby nullifying whatever "lip service" that

- 8 - the prosecutor might have given to the bargained-for sentencing

recommendation.

We start our consideration of the defendant's argument

with first principles: "[n]o magic formula exists for a prosecutor

to comply with the agreed-upon sentence recommendation." Gonczy,

. Having repeatedly stated the government's

sentencing recommendation of 87 months to the court, the prosecutor

was not required to discuss any specific aspects of the

government's thinking. In assessing whether the government

breached its agreement to argue for the bargained-for sentence, we

look instead to whether its "overall conduct" was "reasonably

consistent with making such a recommendation, rather than the

reverse."

(quoting United States v. Canada,

(1st Cir. 1992)); see Almonte-Nuñez,

("We consider

the totality of the circumstances in determining whether a

prosecutor engaged in impermissible tactics.").

To be sure, the defendant perceives an inconsistency

between the prosecutor's limited discussion of the government's

sentencing recommendation and the strong language that the

prosecutor used to describe the nature of the defendant's crime.

We acknowledge, of course, that "it is possible for a prosecutor

to undercut a plea agreement while paying lip service to its

covenants." Almonte-Nuñez,

. For example, we

have found (albeit under a more sympathetic standard of review)

- 9 - that such a breach occurred when the government never affirmatively

recommended the agreed-upon sentence, see Canada,

;

when the government effectively argued against a sentencing

reduction in contravention of the plea agreement, see United States

v. Clark,

(1st Cir. 1995); and when the

government's zealous advocacy belied its agreement to recommend

the low end of the applicable guideline sentencing range, see

Gonczy,

. Those cases, though, are at a far remove

from the case at hand.

In this instance, the prosecutor repeatedly stated the

government's recommendation of 87 months in accordance with the

Agreement. See Saxena,

(finding no breach where

prosecutor "resolutely stood by the bottom-line recommendation

that the government had committed to make"); United States v.

Irizarry-Rosario,

(1st Cir. 2018) (finding no

breach where explanation of sentencing recommendation was

"interspersed with reaffirmations of the . . . sentencing

recommendation"). While the prosecutor's statements to this

effect were simple and straightforward, a prosecutor is not obliged

to present an agreed recommendation either with ruffles and

flourishes or "with any particular degree of enthusiasm." Canada,

. Nor is the defendant entitled "to have the

government sugarcoat the facts." Almonte-Nuñez,

.

- 10 - The defendant's attempt to find a breach of the plea

agreement in the prosecutor's unflattering narrative about the

heinous nature of the defendant's crime is unpersuasive. This

argument overlooks the salient fact that, under the Agreement, the

government had a right to advocate for a sentence higher than the

sentence that the defendant was seeking. Thus, the prosecutor had

a right (indeed, a duty) to explain to the court why the higher

sentence that it was urging was more appropriate. Almonte-Nuñez

illustrates this point. There, we held that where a plea agreement

entitled the prosecutor to argue for the high end of a guideline

range while the defendant argued for the low end of that range,

the prosecutor "was within fair territory in emphasizing facts

that made a sentence at the low end of that [range] inappropriate."

So it is here. The prosecutor had every right to

highlight the serious nature of the offense and its impact on

society in order to advocate for a sentence above the sentence

requested by the defendant, as well as to demonstrate the

unsuitable nature of the defendant's request. To this end, the

prosecutor told the court that the conduct underlying the

conviction was such as to "feed[] a terrible industry" supported

by "the sexual abuse and torture of children," and that "the

defendant chose to pursue his own sexual gratification with

flagrant disregard for the welfare of thousands of minor children."

- 11 - Such language, though harsh, coheres both with the government's

decision to charge the defendant with this serious crime and with

its reservation of the right to argue for an 87-month sentence.

We hold, therefore, that the prosecutor's statements at sentencing

did not contradict any terms of the Agreement, nor did they

"'gratuitously offer[] added detail garbed in implicit advocacy'

that might have led the district court to rethink the government's

recommendation." Irizarry-Rosario,

(quoting

United States v. Miranda-Martinez,

(1st Cir.

2015)). When the parties agree that a defendant may argue for a

particular sentence while the government may argue for a somewhat

stiffer sentence, the government is not constrained to pull its

punches when arguing for the stiffer sentence.

The defendant has a fallback position. He says that the

government breached the Agreement when it "advocated for a higher

number of images than stipulated in the plea agreement." The

government concedes that the prosecutor misstated the number of

images stipulated in the Agreement but maintains that this was a

slip of the tongue. Everything in the record points toward a

finding of inadvertence. At the disposition hearing, there was no

contemporaneous objection and, indeed, none of the parties appear

to have noticed the misstatement when it was made. The prosecutor

proceeded to recommend a sentence of 87 months — a recommendation

derived from a hypothetical guideline sentencing range determined

- 12 - in accordance with the number of images stipulated in the

Agreement. The bottom line, then, is that "[t]his is not a record

in which the misstep conveyed a message that the ultimate

recommendation was insincere." United States v. Oppenheimer-

Torres,

(1st Cir. 2015).

Nor does it appear that the misstatement in any way

affected the outcome of the proceedings. The record is bereft of

any basis from which we might reasonably infer that the district

court was misled as to the number of images stipulated to by the

parties. That number was correctly described both in the Agreement

and in the PSI Report — and those documents were before the

district court at sentencing. And in any event, the court itself

had independently determined that the offense conduct involved 600

or more images. Given the totality of the circumstances, we find

no prejudice attendant to the prosecutor's lapses linguae and,

thus, no merit in the defendant's claim that this misstatement

heralded a breach of the plea agreement.

B. Knowing Distribution.

This brings us to the defendant's plaint that the

district court erred when it included a two-level enhancement for

knowing distribution in its calculation of the guideline

sentencing range. This plaint has a narrow focus: while the

defendant does not dispute that distribution occurred, he alleges

- 13 - that the government failed to provide evidence that he knew of the

file-sharing properties of the program.

It is elementary that "the government bears the burden

of proving sentence-enhancing factors by a preponderance of the

evidence." United States v. Nuñez,

(1st Cir.

2017). We apply a clear error standard of review to the sentencing

court's factfinding — a standard that extends to any findings based

on inferences drawn from discerned facts. See

This is a

demanding standard, satisfied only if, "upon whole-record-review,

an inquiring court 'form[s] a strong, unyielding belief that a

mistake has been made.'" United States v. Cintrón-Echautegui,

(1st Cir. 2010) (alteration in original) (quoting

Cumpiano v. Banco Santander P.R.,

(1st Cir.

1990)).2

Section 2G2.2(b)(3)(F) of the sentencing guidelines was

amended, effective as of November 2016, to limit the two-level

enhancement to possessors of child pornography who "knowingly

2 The dissent suggests that deference to the district court's factual findings may be lessened here because we are assessing the district court's logic on a paper record, which invites no weighing of credibility. See post at 31. What the dissent calls "logic" is nothing more or less than the drawing of inferences from the facts of record and, thus, the dissent's suggestion lacks force. See RCI Ne. Servs. Div. v. Bos. Edison Co.,

(1st Cir. 1987) ("[F]indings of fact do not forfeit 'clearly erroneous' deference merely because they stem from a paper record."); see also Limone v. United States,

(1st Cir. 2009) ("The application of clear-error review to findings drawn from a paper record has long been the practice in this circuit.").

- 14 - engaged in distribution." In incorporating a mens rea requirement,

the Sentencing Commission resolved a circuit split and "generally

adopt[ed] the approach of the Second, Fourth, and Seventh

Circuits." USSG Supp. to App. C, Amend. 801 at 145 (2016); see

United States v. Baldwin,

(2d Cir. 2014) (per

curiam); United States v. Robinson,

(7th Cir.

2013); United States v. Layton,

(4th Cir. 2009).

Even as amended, though, the enhancement does not require proof

that the defendant intended to distribute child pornography — "as

long as he had knowledge that by using a peer-to-peer file-sharing

program, his child pornography was made accessible to others."

United States v. Cates,

(1st Cir. 2018) (emphasis

in original). In all events, "the government need not prove

knowledge by direct evidence, but may prove knowledge by

circumstantial evidence."

Viewed against this backdrop, the

defendant's argument that the government failed to provide "some

evidence" that he affirmatively knew of the file-sharing

properties of the application "confuses a lack of direct evidence

with a lack of evidence."

Cates is instructive. There, we determined that the

district court drew a reasonable inference that the defendant knew

of the file-sharing properties of a peer-to-peer network when it

relied on evidence that the defendant was "relatively

sophisticated in computer matters" and had demonstrated

- 15 - familiarity with the program's file-sharing properties.

. The findings in Cates, albeit based on a stronger

evidentiary predicate, are on the same order as those of the court

below, which drew an equally reasonable inference of knowledge

based on uncontradicted evidence that the defendant was a

"sophisticated and long-time computer user" who had selected from

thousands of downloaded files a limited number to share through

the file-sharing program.

On this record, the sentencing court was entitled to

draw the plausible inferences that led to a finding of knowledge.

Inferences based on circumstantial evidence "need not be compelled

but, rather, need only be plausible." See Nuñez,

.

The court below reasonably could infer that the defendant was a

sophisticated computer user based on evidence that he had acquired

two degrees in computer science and computer networks. Similarly,

the court reasonably could infer that the defendant selected a

limited number of child sex abuse files to be shared on Ares. That

conclusion was based on evidence that the defendant had downloaded

thousands of child sex abuse files but that he shared only 74 and

15 child sex abuse files, respectively, on each of his two

computers.

Surely, other plausible inferences could be drawn from

this evidence. But that is not the test: the decisive

consideration is that, on the record before it, the court below

- 16 - plausibly could infer that the disparity between files downloaded

and files shared was a result of the defendant's desire to share

only some files. And it is apodictic that "[w]here the raw facts

are susceptible to competing inferences," a district court's

"choice between those inferences cannot be clearly erroneous."

United States v. McCormick,

(1st Cir. 2014).

The defendant challenges the sufficiency of these

findings. He submits that the government was required to furnish

evidence concerning the operation of the particular file-sharing

program at issue. We previously have called such an argument a

"red herring," holding that the sentencing court drew a reasonable

inference of knowledge without the benefit of evidence that files

downloaded through the program were automatically accessible for

others to download.

The argument has not changed its color

in the short time that has elapsed since Cates was decided.

Let us be perfectly clear. We do not hold that such

evidence is irrelevant to the issue of knowing distribution.

Simply using a program (like Ares) that automatically steers

downloaded files into a shared folder may well be insufficient,

standing alone, to support an inference of knowledge, particularly

if the government has not provided evidence that the defendant

knew of this mechanism or otherwise possessed the technological

proficiency to understand that it was in place. See, e.g., United

States v. Carroll,

, 1354 & n.4 (11th Cir. 2018)

- 17 - (holding that government was required to "put forth evidence that

[defendant] had some advanced technological proficiency" to

support finding of knowing distribution by means of file-sharing

program that did not notify users of automatic sharing); Robinson,

(concluding that computer novice who "had never

seen a file-sharing program before might not realize" that "shared

files are accessible automatically to other persons online").

Conversely, concerns about automatic file-sharing have been

allayed where — as in Cates — courts have found that the defendant

possessed "advanced computer knowledge" or used the program in a

manner that indicated an understanding of how the program worked.

See United States v. Alpizar, ___ F.3d ___, ___ (11th Cir. 2018)

[No. 16-15170, slip op. at 6]; United States v. Nordin,

(8th Cir. 2017) (per curiam).

This case is of the latter stripe. The court below

reasonably inferred knowledge both from its well-supported finding

that the defendant was "a sophisticated and long-time computer

user" and from the defendant's storage of select files in his

shared folder. No more was exigible to render the court's findings

adequate as a foundation for a reasonable inference of knowledge,

regardless of whether downloaded files were automatically

available for distribution to others. Accordingly, we discern no

clear error in the court's imposition of a two-level enhancement

for knowing distribution of child pornography.

- 18 - III. CONCLUSION

We need go no further. For the reasons elucidated above,

the defendant's sentence is

Affirmed.

— Separate Opinion Follows —

- 19 - LIPEZ, Circuit Judge, concurring in part and dissenting

in part. Although I concur with the majority's conclusion

regarding the government's alleged violation of the plea

agreement, I respectfully disagree with its conclusion regarding

the sentencing enhancement that was applied to increase

appellant's sentence. That enhancement is not supported by the

record before the district court. Therefore, I would hold that

the court clearly erred in determining that the government proved

appellant's knowledge of distribution by a preponderance of the

evidence. Before explaining my reasoning, I must provide some

context for my assessment of the enhancement and augment the

majority's description of the factual record.

I.

A. Peer-to-Peer File-Sharing Programs

In recent years, "'peer-to-peer' . . . file-sharing via

the Internet has resulted in significant changes in the manner in

which [child pornography] offenses are committed." U.S.

Sentencing Comm'n, Report to the Congress: Federal Child

Pornography Offenses (Dec. 2012), at 5. Peer-to-peer file-sharing

networks "'allow[] users to download files from the computers of

other users. Unlike other means of acquiring files over the

Internet, such as in a chat room or using e-mail[,] . . . no

personalized contact is required between the provider and

receiver.'" United States v. R.V.,

, 235

- 20 - (E.D.N.Y. 2016) (quoting Maggie Meuthing, Inactive Distribution:

How the Federal Sentencing Guidelines for Distribution of Child

Pornography Fail to Effectively Account for Peer-to-Peer Networks,

, 1488 (2012)). In addition to allowing a

user to download files, file-sharing programs also make files on

a user's computer accessible for download by other users. Notably,

[a] crucial aspect of peer-to-peer file-sharing is that the default setting for these networks is that downloaded files are placed in the user's "shared" folder, which allows others in the network to access the files. A user must affirmatively change his network setting to disable this sharing feature.

(quoting Audrey Rogers, From Peer-to-Peer Networks to Cloud

Computing: How Technology is Redefining Child Pornography Laws,

, 1031 (2013)).

When first downloaded, Ares, the file-sharing program

used by appellant, "sets up a shared folder on the computer where,

by default, it automatically places all subsequent [Ares]

downloads. Once a file is [automatically] placed in the shared

folder, it is immediately available for further dissemination."

United States v. Carroll,

(11th Cir. 2018).

That is, "[u]nless an Ares user changes the default settings or

deliberately moves files out of the shared folder, downloaded files

[from Ares] will remain freely accessible to anyone else on the

Ares network."

- 21 - B. The "Knowing" Distribution Guideline Enhancement

In general, due to the pervasive use of file-sharing

programs to access child pornography, the sentencing guideline

enhancements for the non-commercial distribution of child

pornography may be applied to the majority of non-production child

pornography offenders. See U.S. Sentencing Comm'n, Report to the

Congress, at 149-50, 154-55. Until the end of 2016, the sentencing

guidelines provided for a two-level enhancement in child

pornography cases "[i]f the offense involved . . . [d]istribution."

Compare U.S. Sentencing Guidelines Manual § 2G2.2(b)(3)(F) with

U.S. Sentencing Guidelines Manual § 2G2.2(b)(3)(F) (as amended

Nov. 2016).3 Courts generally agreed that a user of a peer-to-

peer file-sharing network need not take affirmative steps to share

files with other users in order to have "distributed" child

pornography. See, e.g., United States v. Chiaradio,

(1st Cir. 2012) (accepting the analogy of a peer-to-peer file-

sharing program user to a self-serve gas station owner in holding

that a person may "passive[ly]" distribute files by making them

available for download by other users).

However, the circuits were split on whether the

enhancement required some mens rea despite the absence of language

3 If the offense involves distribution in exchange for any type of payment or distribution to a minor, the guidelines provide for a greater enhancement. See U.S.S.G. § 2G2.2(b)(3)(A)-(E).

- 22 - to that effect in the guideline. Several circuits held that the

enhancement required evidence that a defendant knew about the file-

sharing properties of the program he was using to obtain child

pornography. See, e.g., United States v. Baldwin,

(2d Cir. 2014); United States v. Robinson,

(7th Cir. 2013); United States v. Layton,

(4th

Cir. 2009). Other circuits held that there was no knowledge

requirement, or that knowledge could be presumed from a defendant's

use of a file-sharing program. See, e.g., United States v.

Abbring,

(6th Cir. 2015); United States v. Creel,

(11th Cir. 2015); United States v. Baker,

(5th Cir. 2014); United States v. Ray,

(10th Cir. 2013); United States v. Dodd,

(8th Cir. 2010).

In late 2016, the guideline enhancement was amended to

specify that it applied only where a defendant "knowingly engaged

in distribution." U.S.S.G. § 2G2.2(b)(3)(F) (emphasis added). In

amending the guideline, the Sentencing Commission noted that some

file-sharing programs "employ a default file-sharing setting" and

that a user has to "'opt out' of automatically sharing files by

changing the default setting to limit which, if any, files are

available for sharing." U.S.S.G. App. C, Amend. 801 (eff. Nov. 1,

2016). The Commission acknowledged the existing uncertainty

regarding mens rea and stated that it was "generally adopt[ing]

- 23 - the approach of the Second, Fourth, and Seventh Circuits," which

all required evidence of a defendant's knowledge of a program's

file-sharing properties. Id.

In codifying this approach, the Commission rejected both

the approach of those circuits that did not require evidence of

knowledge and the approach of those circuits that had held that

knowledge of a program's file-sharing properties "may be inferred

from the fact that a file-sharing program was used, absent

'concrete evidence' of ignorance," because "the whole point of a

file-sharing program is to share." Id. (quoting Dodd,

, and Abbring,

). After the amendment, then,

application of the enhancement requires specific evidence of a

defendant's "knowledge that by using a peer-to-peer file-sharing

program, his child pornography was made accessible to others."

United States v. Cates,

(1st Cir. 2018). The

simple fact that a defendant used a file-sharing program does not

constitute evidence of knowledge.4 In other words, it is not

enough for the government to assert that a defendant "was using a

peer-to-peer file sharing program and 'that is what it is.'"

Carroll,

.

4 To the extent knowledge can be established by evidence of recklessness, the district court did not rely on this theory, and, in any event, my analysis would not differ if the government was pressing a recklessness theory.

- 24 - The question then becomes what constitutes evidence of

knowledge to support the enhancement. In Cates, we described a

substantial amount of evidence of knowledge. Specifically, there

was evidence that the defendant (1) had used a file-sharing program

to download child pornography for three years; (2) had created a

"specialized configuration" "by which files downloaded from [the

file-sharing program] would bypass his master hard drive and be

saved automatically to the 'sharing folder' housed on a subservient

drive"; and (3) had, in his interview with authorities,

"demonstrated considerable familiarity with [the program]'s

file-sharing properties" and acknowledged that he could turn off

the program's default setting of automatic sharing. Cates,

.

The Eleventh Circuit's recent treatment of the amended

guideline in relation to the Ares program is also instructive. In

Carroll, the court reversed a distribution conviction "because the

government failed to put forth any evidence that [the defendant]

knew downloaded files were automatically placed into a shared

folder accessible to the Ares peer-to-peer network." Carroll,

(emphasis added). The only proffered evidence of

knowledge in Carroll was the defendant's use of the Ares program

and the presence of files automatically being placed into, and

shared from, the Ares-created folder.

. The court

considered this to be no evidence at all of the defendant's

- 25 - knowledge. In a subsequent case affirming an application of the

knowing distribution enhancement, the Eleventh Circuit

distinguished Carroll by noting, inter alia, that the defendant in

the present case "admitted to knowing how file sharing programs

like A[res] worked" and had continued to share child pornography

after being told by the FBI "how A[res] file sharing worked."

United States v. Alpizar, No. 16-15170,

, at *6

(11th Cir. July 26, 2018).

In sum, Cates, Carroll, and Alpizar demonstrate the type

of evidence needed to apply the "knowing" distribution enhancement

in a case involving a program that automatically shares downloaded

files -- that is, some specific evidence that the defendant used

the program in a manner demonstrating his awareness of the

program's file-sharing properties. Without this evidence, a court

risks applying the enhancement based solely on a defendant's use

of a file-sharing program, which is the approach explicitly

rejected by the Sentencing Commission.

II.

Against this backdrop, I turn to the record before the

district court. The government's undisputed version of the facts,

which was incorporated into the plea agreement, provides the only

description in evidence of appellant's collection of child

pornography on his two computers. It states:

- 26 - [D]efendant's Sony VAIO laptop . . . was found to contain 26 child sex abuse images. Additionally, it contained evidence of: a) 2,578 child sex abuse files having been downloaded and then erased; b) 71 incomplete downloads of child sex abuse files; c) 74 child sex abuse files being shared on "Ares[";] and, d) 23 child sex abuse-related search terms having been entered by the defendant.

[D]efendant's Compaq desktop computer . . . was found to contain 1,046 child sex abuse images. Additionally, it contained evidence of: a) 802 child sex abuse files having been downloaded and then erased; b) 162 incomplete downloads of child sex abuse files; c) 15 child sex abuse files being shared on "Ares[";] and, d) 48 child sex abuse-related search terms having been entered by the defendant.5

In addition to this description of the child pornography that

appellant possessed, there is no dispute that (1) he searched for

and downloaded child pornography; (2) he downloaded the Ares file-

sharing program onto his two computers; (3) a certain number of

child pornography files were "being shared on Ares," likely meaning

that these files were in the Ares folders on each device; and (4)

a smaller number of files in the case of his laptop, and a larger

number of files in the case of his desktop, were housed elsewhere

on the computers.6 Finally, although this aspect of the Ares

5 I assume that there is no meaningful distinction between the government's use of "images" and "files" in this case, considering that neither my colleagues, nor the district court, nor the parties suggest any such distinction. For consistency, I refer to the child pornography on appellant's computers as "files." 6 To the extent there is any ambiguity in the government's

description of appellant's child pornography collection, I note it follows logically that the files "contain[ed]" on appellant's computers are different from the files "being shared on 'Ares.'"

- 27 - program is not made explicit in the record, there is no dispute

that the program, when first downloaded, "sets up a shared folder

on the computer where, by default, it automatically places all

subsequent downloads" from Ares and that files automatically

placed in this folder are freely accessible to other users.

Carroll,

.

On this record, the district court concluded, "[t]he

selection on both devices of a specific number of child sex abuse

files to be shared on the 'Ares' network out of the thousands

downloaded by defendant [indicates] that he applied his computer

knowledge to pick and choose the particular contraband that he

wanted to exchange through the 'Ares' file-sharing program." Based

on this finding, plus a finding that appellant is a "sophisticated

and long-time computer user," the court concluded that "all

indications are that [he] used a shared folder that he knew others

could access in order to download child pornography files."

Although the majority states that the court "was entitled to draw

the plausible inferences that led to a finding of knowledge,"

appellant contends that there is no evidence to support the

district court's inference that he "picked and chose" certain files

For example, appellant's laptop was "found to contain" 26 files, but there were 74 files being shared on Ares, demonstrating that the files being shared were not a subset of the files "contain[ed]" on his computers.

- 28 - to share through Ares, the inference essential to the district

court's finding of knowledge. I agree.

III.

Given that a certain number of child pornography files

were on appellant's computers but not in the Ares folders, the

district court inferred that he intentionally placed certain files

in the Ares sharing folders, or kept certain files in the folders

while removing others. The court further inferred that he

performed this allocation because he was aware of the Ares

program's file-sharing properties. As the district court

implicitly saw it, there is no reason to intentionally place or

keep files in the sharing folders other than to share these files

with other Ares users.

There is no evidence to support this inference of

allocation, however, because there is no evidence about the origin

of the child pornography files on appellant's computers. The

district court's inference would be supported if there was any

evidence that appellant moved files between the Ares folders and

other locations on his computers. Yet for all we know, appellant

acquired all the files outside the Ares folders from a source other

than Ares. In that case, all the files in the Ares folders could

have been automatically placed there when they were downloaded

through Ares and appellant would not necessarily have moved any

files into or out of the Ares folders.

- 29 - To be sure, there is a plethora of evidence that could

have illuminated the allocation issue: for example, computer

forensic examinations can readily ascertain the origin of files or

how long they have been on a computer. See Sergeant Josh Moulin,

What Every Prosecutor Should Know About Peer-to-Peer

Investigations, Child Sexual Exploitation Program Update Volume 5,

Number 1, 2010, National District Attorneys Association, National

Center for Prosecution of Child Abuse (describing the detailed

evidence about a defendant's use of a file-sharing program,

manipulation of default settings, and handling of files in general

that can be ascertained through a computer forensic examination).

If we knew that any of the files stored outside the Ares folders

were downloaded through Ares, for example, this would be evidence

that appellant intentionally removed certain files from the Ares

folders. Similarly, if we knew that any of the files inside the

Ares folders were not originally downloaded through Ares -- if

these files were obtained through another source, for example, via

the sharing of files on external drives or even through a different

file-sharing program -- this would be evidence that he

intentionally placed certain files into the Ares folders. This

type of evidence, however, is completely absent from the record.

Thus, the district court's foundational inference -- that

appellant intentionally allocated files between the Ares folders

and other locations on his computers -- is pure speculation.

- 30 - Simply put, there was no evidence before the district court that

appellant "used the program in a manner that indicated an

understanding of how the program worked," as my colleagues contend.

We must also remember that references in our sentencing

enhancement decisions to "plausible inferences" cannot obscure the

requirement that the government has to prove the applicability of

a sentencing enhancement by a preponderance of the evidence. See

United States v. Lacouture,

(1st Cir. 2016).

Since the inference of allocation is at the heart of the district

court's finding that appellant had knowledge of the file-sharing

properties of the Ares program, the absence of any evidence to

support that inference is even more striking. Moreover, a

traditional rationale for deference to a district court's findings

-- its ability to weigh credibility -- has no relevance here. We

are only evaluating the district court's logic, not any assessment

of credibility. Cf. United States v. Brum,

(1st

Cir. 1991) ("We review the challenged findings of fact for clear

error, mindful of the deference to which the sentencing court's

superior opportunity to assess witness credibility is entitled.").

The contrast between this case and cases like Cates and

Carroll is telling. In Cates, we highlighted the veritable

mountain of specific evidence indicating that the defendant was

aware of a program's file-sharing properties. See

. In Carroll, the Eleventh Circuit rejected an application

- 31 - of the enhancement that was based solely on the fact that the

defendant was using Ares. See

. Here, the

record is devoid of the type of evidence we highlighted in Cates.

And when we scrutinize the district court's reasoning, it is clear

that the court, in applying the enhancement, essentially relied on

the bare fact that appellant was using Ares.

Without the unsupported inference that appellant "picked

and chose" files to place in the Ares folders for sharing, all

that we are left with is the district court's finding that

appellant possesses a level of general computer proficiency. I

agree that a defendant's "advanced computer knowledge" may be

relevant to the knowledge inquiry. However, I am not aware of any

authority in our case law for the proposition that some level of

general computer proficiency on a defendant's part is enough, on

its own, to support a finding of knowledge for purposes of the

enhancement. But see United States v. Ryan,

(7th Cir. 2018)(affirming a knowing distribution conviction

because "[t]he government . . . presented evidence of [defendant]'s

sophisticated understanding of computers and software"). Even the

majority does not contend that a defendant's general computer

knowledge, such as a degree in computer science, is sufficient to

support the enhancement. Yet once the unsupported inference of

- 32 - allocation is removed from the equation, the evidence of

appellant's general computer knowledge is all that remains.7

IV.

The district court applied the "knowing" distribution

enhancement based on an inference of allocation that is not

supported by the record. Without any evidence about the origin of

the various files on appellant's computers, there is no evidence

that he intentionally moved files into or out of the Ares folders.

The court's inference of allocation was thus pure speculation.

Once this unsupported inference is put aside, it is apparent that

the district court essentially applied the enhancement because

appellant was using a file-sharing program. That is precisely the

approach rejected by the Sentencing Commission. My colleagues

tacitly accept this discredited approach. I would hold that the

district court clearly erred in applying the enhancement.

7 Even if general computer proficiency could theoretically support application of the enhancement on its own, appellant's level of computer proficiency would fall short. He completed a bachelor's degree in computer science and an associate's degree in computer networks a decade ago. He further indicated he is "skilled in computers" and "expressed interest in completing a Master's Degree in Computer Networks." However, he also expressed interest in pursuing formal training as a hairstylist, and his most recent job before his arrest was as a "receiving supervisor" at a "produce packing company . . . earning approximately $500 weekly." In other words, there is little to no evidence that he possessed "advanced computer knowledge" or was especially proficient in current computer technology, let alone file-sharing programs such as Ares. There is also no record evidence that he had used Ares for a significant period of time and thus had an opportunity to develop familiarity with the program.

- 33 -