David Lopez, Jr. pleaded guilty to two counts of transporting child pornography and two counts of possessing it. The district court calculated his offense level at forty-two, resulting in a sentencing range of 360 months to life imprisonment. This calculation included two specific five-level enhancements under the U.S. Sentencing Guidelines: one for distributing child pornography in exchange for valuable consideration, and another for engaging in a pattern of activity involving the sexual abuse or exploitation of a minor. Lopez appealed, contesting both enhancements, while the government conceded that the pattern enhancement was applied in error. The district court had adopted the presentence investigation report's findings and sentenced Lopez to 360 months, the low end of the calculated range.
Chief Judge Elrod, writing for the panel, addressed the two enhancements separately. Regarding the distribution enhancement under U.S.S.G. § 2G2.2(b)(3)(B), the court applied de novo review to the legal question and clear error review to the factual findings. The court explained that the enhancement applies when a defendant agrees to exchange child pornography for valuable consideration, which can be an implicit agreement. The record showed Lopez participated in online chatrooms where access to materials was conditional on submitting similar materials. The court found this constituted an implicit agreement to exchange, noting that the 2016 amendment to the Guidelines clarified the requirement for a specific purpose of exchange but did not exempt participants in such chatrooms. The court distinguished this from cases involving mere peer-to-peer file sharing without an agreement to exchange, citing United States v. Halverson. The court held that Lopez's participation satisfied the requirement of distributing with the intent to receive valuable consideration from the group. Conversely, regarding the pattern enhancement under § 2G2.2(b)(5), the court applied plain-error review because Lopez did not object in the district court. The Guidelines define a pattern as two or more separate instances of conduct involving sexual abuse or exploitation, excluding the charged offenses of possession or trafficking. The court found that only one of Lopez's state offenses qualified, leaving him with only one instance rather than the required two. Consequently, the government failed to meet the burden for this enhancement, and the error affected Lopez's substantial rights by inflating his sentencing range.
The decision requires the district court to resentence Lopez within the corrected Guidelines range of 324 to 405 months. The court vacated the life term of supervised release and the 360-month sentence. On remand, the district court must determine whether the government may present new evidence to support the pattern enhancement, considering factors such as whether the government's burden was unclear or if evidence was previously unavailable. The ruling clarifies that implicit agreements in chatrooms where sharing is a condition of access satisfy the distribution enhancement, while strictly limiting the pattern enhancement to cases with two or more distinct qualifying instances of abuse or exploitation.
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