Split Widened: Does U.S.S.G. 2G2.2(b)(3)(F) require knowledge?

Per United States v. Robinson (7th Cir. Apr. 9, 2013)

Although I am far more of a textualist than he, I am a fan of Judge Posner.  But this is one of the worst opinions from him that I have read.  It is internally contradictory, overlooks the obvious implications of the authorities it relies on, and creates an unnecessary make-work remand.

The split at issue is whether distribution has to be knowing for purposes of 2G2.2(b)(3)(F).  The text of the relevant commentary defining "distribution" and "distribution to a minor" provide:

"Distribution" means any act, including possession with intent to distribute, production, transmission, advertisement, and transportation, related to the transfer of material involving the sexual exploitation of a minor. Accordingly, distribution includes posting material involving the sexual exploitation of a minor on a website for public viewing but does not include the mere solicitation of such material by a defendant. 

"Distribution to a minor" means the knowing distribution to an individual who is a minor at the time of the offense

The CA10 held that knowledge was not required because (1) the text of the commentary is silent with respect to mens rea, (2) the usual presumption of a mes rea requirement, applicable to criminal laws, does not apply to Guidelines, and (3) reading a mens rea requirement into the definition of distribution would render the word "knowing" in the definition of distribution to a minor superfluous.

Here, the CA7 joins the CA8 (whose opinion is quite opaque) to reach the opposite conclusion, that knowledge is required.  (p.3.)  It provides only one reason for this conclusion:  that strict liability is disfavored in the criminal context.  In addition, Judge Posner rejects the argument (apparently not made) that knowledge of a peer-to-peer network's capabilities would make distribution "knowing," on the grounds that the criminal presumption of knowledge of the law does not apply in the Guidelines context.  Finally, Judge Posner rejects the CA10's superfluity analysis by reading the commentary's use of "knowing" to apply to the fact of the recipient's minority, rather than just to distribution.

As intimated in the introduction, I am inclined to agree with the CA10.  The relevant commentary is silent, the canon against superfluity applies, and the presumption of a mens rea does not apply to the guidelines.  With respect to Judge Posner's attempt to rebut the canon against superfluity, knowing should be read as modifying its closest noun, distribution, and not minor.

Moreover, Judge Posner's analysis is self contradictory in two respects.  First, he relies on the criminal law presumption of a mens rea, though numerous circuits have concluded that that presumption does not apply to the Guidelines, while rejecting the criminal law presumption of knowledge of the laws precisely because of the Guidelines context (though numerous circuits have applied this presumption to the Guidelines).  Second, Judge Posner notes that the Sentencing Commission has taken note of the split between the CA8 and CA10, and has stated "the guideline could be amended to better distinguish between more and less culpable distribution conduct.”  (p.5 (emphasis added).)  But he fails to draw the obvious conclusion:  That in the Sentencing Commission's view, unknowing conduct is still distribution, albeit less culpable.

What makes this all the worse, however, is that the opinion is reviewing for plain error.  Certainly, as the analysis above shows, the knowledge requirement is not plain.  (Judge Posner's opinion only introduces the plain error framework after undertaking what appears to be a de novo review of the Guidelines).  Plus, for a reversal on plain error, the defendant has the burden of showing that the error affected his substantial rights.  Here, I do not know how the Defendant could possibly have met that burden, where the ultimate sentence imposed was at the low-end of the guidelines range without taking the 2G2.2(b)(e)(f) enhancement into account.  Judge Posner entirely overlooks the burden of proof, and does not require the Defendant to offer any evidence that the sentencing judge might have or would have imposed a lesser sentence under a supposedly "proper" guidelines calculation.  This ultimately results in a make-work remand, unnecessarily burdening the judicial system..