Argued: September 20, 2017
from the United States District Court for the Western
District of North Carolina, at Charlotte. Robert J. Conrad,
Jr., District Judge. (3:16-cr-00083-RJC-1)
Randolph Marshall Lee, Charlotte, North Carolina, for
Elizabeth Ray, OFFICE OF THE UNITED STATES ATTORNEY,
Asheville, North Carolina, for Appellee.
Westmoreland Rose, United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Charlotte, North Carolina, for
DUNCAN, DIAZ, and THACKER, Circuit Judges.
THACKER, CIRCUIT JUDGE.
Paul Stitz ("Appellant") appeals the district
court's determination that a factual basis existed for
his plea of guilty to distribution of child pornography.
Specifically, the main issues on appeal are whether use of a
peer-to-peer file-sharing system constitutes
"distribution" of child pornography pursuant to 18
U.S.C. § 2252A(a)(2)(A), and whether Appellant possessed
the requisite mens rea. For the following reasons, we answer
both questions in the affirmative. Accordingly, we affirm.
April 7, 2016, the Government filed a single-count
information charging Appellant with distribution of child
pornography by computer in violation of 18 U.S.C. §
2252A(a)(2)(A). Appellant and the Government had
previously entered into a plea agreement on April 5, 2016,
wherein Appellant stipulated that there was a factual basis
for the plea. The parties filed a stipulated factual basis
("Stipulation") signed by the Government and
Appellant's counsel as an attachment to the plea
agreement. The plea agreement noted that Appellant had read
and understood the Stipulation.
Stipulation states that on three occasions FBI investigators
used the ARES file-sharing network to connect with
Appellant's IP address and download child pornography
files. Moreover, Appellant admitted in the Stipulation that
during an interview with the FBI, he acknowledged that he was
aware his computer was sharing child pornography files on the
April 14, 2016, Appellant appeared in magistrate court for a
plea hearing. The court conducted the plea colloquy based on
the single-count information, plea agreement, and
Stipulation. Appellant confirmed that he was aware the
Stipulation had been filed as an attachment to the plea
agreement, he had read the Stipulation, and he understood and
agreed with the Stipulation.
October 26, 2016, the district court conducted a sentencing
hearing during which it accepted the Stipulation and found a
sufficient factual basis to support the guilty plea as
required by Federal Rule of Criminal Procedure 11(b)(3). The
court calculated Appellant's advisory sentencing range
pursuant to the United States Sentencing Guidelines
("Guidelines" or "U.S.S.G.") at 151 to
188 months, corresponding to an offense level 34 and criminal
history category I. The parties agreed that the calculation
the sentencing hearing, Appellant argued that he was entitled
to a lower sentence based on the factors enumerated in 18
U.S.C. § 3553(a). Appellant's argument was twofold:
(1) his distribution of child pornography ...