USA v. Jefferson Sanchez

Filing

Opinion issued by court as to Appellant Jefferson Sanchez. Decision: Affirmed. Opinion type: Non-Published. Opinion method: Per Curiam. The opinion is also available through the Court's Opinions page at this link http://www.ca11.uscourts.gov/opinions.

Case: 15-13161

Date Filed: 07/25/2016

Page: 1 of 4

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 15-13161
Non-Argument Calendar
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D.C. Docket No. 1:15-cr-20076-JAL-1

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JEFFERSON SANCHEZ,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(July 25, 2016)
Before ED CARNES, Chief Judge, JORDAN, and JULIE CARNES, Circuit
Judges.
PER CURIAM:

Case: 15-13161

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Law enforcement officers executed a search warrant at Jefferson Sanchez’s
residence after determining that someone there was using a peer-to-peer filesharing program to access and share child pornography. During the search, the
officers discovered a laptop with the Ares file-sharing program and child
pornography videos on it. After the search, Sanchez admitted that he had been
downloading and viewing child pornography for years using the Ares network, and
that he did so for his sexual gratification. He eventually pleaded guilty to receiving
child pornography.
In calculating Sanchez’s guidelines range at sentencing, the district court
applied a two-level enhancement under U.S.S.G. § 2G2.2(b)(3)(F) to account for
the fact that Sanchez’s offense involved distributing child pornography. Sanchez
insisted that the enhancement did not apply to him because he had not known that,
by using the Ares program, he was distributing child pornography to other Ares
users. The district court rejected that argument, relying on the holding in United
States v. Creel, 783 F.3d 1357, 1360 (11th Cir. 2015), that, for purposes of
§ 2G2.2(b)(3)(F), “distribution” does not include a mens rea element.
The district court also declined to apply a two-level reduction under
U.S.S.G. § 2G2.2(b)(1). That guideline applies only if, among other things, “the
defendant’s conduct was limited to the receipt or solicitation of material involving
the sexual exploitation of a minor.” Because Sanchez’s offense involved
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distribution, the district court concluded, § 2G2.2(b)(1) did not apply. Sanchez
contends that the district court erred in applying § 2G2.2(b)(3)(F) and in not
applying § 2G2.2(b)(1).
The district court did not err in applying the § 2G2.2(b)(3)(F) enhancement.
That is because, as we held in Creel, the enhancement does not include a mens rea
requirement. 783 F.3d at 1360. Instead, it applies to all defendants who have
distributed child pornography, regardless of whether they knew they were doing
so. Id. There is no question Sanchez distributed child pornography when he used
the Ares program. Accordingly, the § 2G2.2(b)(3)(F) enhancement applies to him.
Sanchez contends that Creel is bad law and that we should instead follow
language from United States v. Spriggs, 666 F.3d 1284, 1287 (11th Cir. 2012),
suggesting that, for purposes of § 2G2.2(b)(3)(F), “distribution” occurs “[w]hen
the user [of a file sharing program] knowingly makes the files [on his computer]
accessible to others.” As we explained in Creel, however, that part of Spriggs is
dictum and therefore not binding on this Court. See Edwards v. Prime, Inc., 602
F.3d 1276, 1298 (11th Cir. 2010). Our prior panel precedent rule means we must
follow the holding in Creel. See Smith v. GTE Corp., 236 F.3d 1292, 1300 n.8
(11th Cir. 2001).
Sanchez points out that the Sentencing Commission recently proposed an
amendment to § 2G2.2(b)(3)(F) that would effectively codify the dictum from
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Spriggs and abrogate the holding from Creel. That is true but irrelevant because
the amendment is only proposed and has not yet been adopted. And it might not be
retroactively applicable anyway. See United States v. Jerchower, 631 F.3d 1181,
1184 (11th Cir. 2011) (substantive amendments to the guidelines do not apply
retroactively on direct appeal). The 2014 version of the guidelines applies to
Sanchez because that is the version under which he was sentenced. And that
version, as interpreted in Creel, does not include a mens rea element in
§ 2G2.2(b)(3)(F).
Our holding that we must follow Creel means we need not address
Sanchez’s remaining arguments about the district court’s application of the
guidelines. He waived those arguments by conceding (rightly) that, “If this Court
. . . considers itself bound by Creel instead of Spriggs, then that would obviate [his]
remaining arguments as to both the enhancement [under § 2G2.2(b)(3)(F)] and the
two-level reduction” under § 2G2.2(b)(1).
AFFIRMED.

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