Transfer of Child Porn Based on Use of Peer-to-Peer Program Upheld

U.S. v. Ramos, -- F.3d --, 2012 WL 3642432 (10th Cir. 8/27/12) - affirmance of sentence for receipt of child porn. The district court appropriately concluded that Mr. Ramos distributed child porn within the meaning of U.S.S.G. § 2G2.2(b) by using eMule; the enhancement of his sentence under that section was therefore proper. The gov't did not have to prove intent to distribute. The commentary states that "distribution" includes "any act ... related to the transfer of material involving the sexual exploitation of a minor." When someone uses a peer-to-peer network file-sharing program with knowledge that the program will deposit downloaded child porn files into a shared folder accessible to other users, that individual has engaged in an act related to the transfer of child porn. Even if Mr. Ramos subjectively desired not to share his child porn, his use of eMule foreclosed that option. The COA declines to address constitutional challenges to the five-year mandatory minimum for receipt of child porn, concluding Mr. Ramos lacks standing because he failed to establish that the mandatory minimum affected the determination of his sentence.