Mere Use of a P2P Network Insufficient to Support 5-level Enhancement

United States v. Barela, 2015 WL 4901785 (8/18/2015) (NM) (published): Child porn defendant gets a new sentencing hearing. More importantly, his imprisonment term will probably be reduced by 5 to 7 years. At sentencing, the district court found Barela had distributed child pornography “for the receipt, or expectation of receipt, of a thing of value.” It therefore, imposed the five level enhancement from U.S.S.G. § 2G2.2(b)(3)(B). Barela argued that US v. Geiner, 498 F.3d 1104 (10th Cir. 2007) requires the government to prove more than that he distributed child pornography through a peer-to-peer network. Here, that is all the government established. The panel agreed and reaffirmed Geiner’s holding that the “mere act of sharing child pornography on a peer to peer network is insufficient to support the enhancement.” The panel said that Geiner established a base line as to what is not enough to prove an accused’s “expectation.”