Creel: No mens rea required for "distribution" enhancement for child pornography

In U.S. v. Creel, No. 14-12438 (April 21, 2015), the Court held that the 2-level “distribution” enhancement of U.S.S.G. § 2G2.2(b)(3)(F) does not include a mens rea element, and affirmed the 84-month sentence imposed on a defendant convicted of receipt of child pornography. Creel objected to the “distribution” enhancement on the ground that he did not know that other users of the peer-to-peer file sharing program could access the child pornography that he had downloaded to his computer. The Court found that the plain language of the Guideline commentary did not require knowledge. The Court pointed out that the commentary defined “distribution to a minor” as “knowing” distribution. The Court found that the fact that one definition included a mens rea and the other definition did not implied that no mens rea was required in the other one. The Court cited like holdings of two other circuits, and acknowledged conflict with the holdings of four other Circuits.