At the very least, the government must present evidence that the defendant actually uploaded and downloaded files using his file-sharing program. See United States v. Dolehide, 663 F.3d 343, 348 (8th Cir. 2011); United States v. Mayokok, 854 F.3d 987, 991 (8th Cir. 2017). But "[a]bsent concrete evidence of ignorance-evidence that is needed because ignorance is entirely counterintuitive-a fact-finder may reasonably infer that the defendant knowingly employed a file sharing program for its intended purpose."
If anything, the District Court "thoroughly and thoughtfully" considered Welshans's arguments relating to his autism diagnosis before ultimately rejecting his requested downward variance. See United States v. Dolehide, 663 F.3d 343, 349 (8th Cir. 2011). In sum, the District Court did not abuse its discretion by declining to grant Welshans's requested downward variance based on his autism diagnosis.
But we have "not condoned application of the enhancement simply because a defendant uses a file-sharing program," and no evidence was presented to establish the necessary proposition that Mayokok actually engaged in file sharing after he uploaded this image. See United States v. Dolehide , 663 F.3d 343, 348 (8th Cir. 2011) ("[T]he Government must present evidence that the defendant uploaded and downloaded files using LimeWire."). Further, the e-mails discussed by the district court during the sentencing hearing establish only that Mayokok sent and received files via e-mail.
Absent concrete evidence of ignorance, "a fact-finder may reasonably infer," through circumstantial evidence, "that the defendant knowingly employed a file[-]sharing program for its intended purpose," United States v. Dodd, 598 F.3d 449, 452, 452 n.2 (8th Cir. 2010), i.e., to "share, swap, barter, or trade files," Griffin, 482 F.3d at 1013. See also United States v. Dolehide, 663 F.3d 343, 347-48 (8th Cir. 2011) (applying this rule in the context of § 2G2.2(b)(3)(B)'s 5-level enhancement). Esqueda first argues that we should abandon our former construction of § 2G2.2(b)(3)(B) and should adopt instead the reasoning set forth in the concurring opinion in Bastian, 603 F.3d at 467-68 (Colloton, J.).
The determination of whether the five-level enhancement for distribution applies is made on a case-by-case basis, with the government bearing the ultimate burden of proof on this issue. United States v. Dolehide, 663 F.3d 343, 347 (8th Cir.2011). The government may meet this burden with direct evidence (usually in the form of an admission) or by circumstantial evidence such as a defendant's relative computer sophistication.
” Id. Once the government meets this burden, a defendant must “show ‘concrete evidence’ of his ignorance as to distribution in order to defeat a finding with respect to distribution.” United States v. Dolehide, 663 F.3d 343, 347–48 (8th Cir.2011) (quoting United States v. Dodd, 598 F.3d 449, 452 (8th Cir.2010)). In this case, the government met its burden by presenting evidence that Chase knew he was using a file-sharing network.
But until the Eighth Circuit revisits it, this Court considers itself bound by Dodd's clear holding: that knowing distribution is permissibly inferred from the defendant's use of a file-sharing program, in the absence of evidence that the defendant didn't know how it worked. See Dodd, 598 F.3d at 452; accord United States v. Esqueda, 599 Fed.Appx. 608, 609 4:22-cr-03147-JMG-CRZ Doc # 50 Filed: 03/14/23 Page 4 of 6 - Page ID # 119 (8th Cir. 2015); United States v. Chase, 717 F.3d 651, 654 (8th Cir. 2013); United States v. Dolehide, 663 F.3d 343, 347 (8th Cir. 2011). But the enhancement must be decided on a case-by-case basis, keeping in mind that the government bears the burden of proving it.
That brings the Court to the final enhancement, for distribution. Among § 2G2.2 offenders, the majority of distribution is a done via P2P networks. Comm'n Rep. at 149–50, 154. That was the case here, and to date, that is the primary method of distribution this Court has observed in most of these cases. In the Eighth Circuit, an offender's use of a P2P network generally qualifies him or her for the 5–level enhancement under § 2G2.2(b)(3)(B), which concerns distribution for the receipt, or expectation of receipt, of a thing of value, other than pecuniary gain. See, e.g., United States v. Dolehide, 663 F.3d 343, 347 (8th Cir.2011); United States v. Durham, 618 F.3d 921, 929 (8th Cir.2010). That is the enhancement at issue here, and the Court has no reason to consider the remaining distribution enhancements at this time.