United States v. Mabee, No. 13-2496 (6th Cir. 2014)Annotate this Case
Using the ARES Peer-to-Peer network, DHS agents downloaded child pornography images from Mabee's Internet address six times in 2012. Agents confronted Mabee at his home and Mabee admitted that he used the ARES software to download child pornography. Forensic examiners recovered at least 73 images and 14 videos, as well as evidence that Mabee had “searched extensively for child pornography using the ARES program.” All of the videos and one of the images had been stored so that they were available for other ARES users to download from Mabee’s computer. Mabee pleaded guilty to a distribution count; other counts were dismissed under Mabee’s Rule 11 plea agreement. Mabee admitted that he knew that the child pornography he had downloaded was available to other ARES users. There was no agreement as to Sentencing Guidelines factors or the appropriate guideline range. Mabee appealed his 121-month sentence arguing that the court misapplied a five-level offense level enhancement (U.S.S.G. 2G2.2(b)(3)(B)), for “receipt, or expectation of receipt, of a thing of value, but not for pecuniary gain.” Mabee argued that the record showed only that he used ARES to download and store child pornography, and there was no evidence that he engaged in trading of images with others. The Sixth Circuit affirmed. The district court could have relied on circumstantial evidence in the record that Mabee made his own computer files available because he expected to receive additional pornography from others.