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The use of file sharing programs such as SHAREAZA 2.0 does not by itself justify five level enhancement under the Federal Sentencing Guidelines in child pornography cases.

The case of United States v. Spriggs, 23 Fla. L. Weekly Fed. C692 (11th Cir. January 10, 2012) considered an appeal which raised an issue that has resulted in significant increases of the sentencing guidelines in child pornography cases.

Specifically U.S.S.G. § 2G2.2(b)(3)(B) calls for a five level enhancement under the sentencing guidelines if it is established that the defendant distributed child pornography for the receipt or expectation of receipt of a thing of value.

The trial court imposed a five level enhancement under U.S.S.G. § 2G2.2(b)(3)(B). The court's rationale was that the use of a file sharing program which allows for the sharing of downloaded files justified the enhancement because it was done with the anticipation of receiving child pornography from other computers that utilized the same file sharing program.

The defendant contended that there was no evidence that he distributed child pornography for the receipt or expectation of receipt of a thing of value as is required under the sentencing guidelines.

The Eleventh Circuit found that while there was evidence that Spriggs had distributed illicit images, there was insufficient evidence to support the other elements of the five level enhancement.

The Eleventh Circuit discussed the case of United States v. Stults, 575 F. 2d 834, 849 (8th Cir. 2009) and disagreed with the ruling that file sharing programs enable users to swap files and therefore, no additional evidence was required to impose the five level enhancement.

The Eleventh Circuit noted that file sharing programs are designed to promote free access of information, not for a form of bartering. The exchange of information contained on various computers that utilize the file sharing program is free.

The Eleventh Circuit further noted that the transactions contemplated by the guidelines involve conduct for valuable consideration and therefore, the use of a program that enables free access to files does not in and of itself establish a transaction sufficient to support the five level enhancement in U.S.S.G. § 2G2.2(b)(3)(B).

The impact of file sharing programs in child pornography cases has resulted in the application of U.S.S.G. § 2G2.2(b)(3)(B) thereby greatly increasing the sentence. This Eleventh Circuit case provides a glimmer of hope to defense counsel in trying to mitigate the overly harsh sentences that are imposed by many judges confronted with computer child pornography.

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