United States v. James Scheidt

MEMORANDUM

James Eric Scheidt appeals from the 324-month sentence imposed following his guilty-plea conviction for receipt or distribution of material involving the sexual exploitation of minors, in violation of 18 U.S.C. § 2252 (a)(2). We have jurisdiction under 28 U.S.C. § 1291 , and we vacate and remand.

Scheidt contends that the district court plainly erred by including, in its calculation of his advisory Sentencing Guidelines range, four points related to distribution of child pornography under U.S.S.G. §§ 2G2.2(b)(1) and 2G2.2(b)(3)(F). We have not yet resolved the issue of whether the use of a file-sharing program, without more, can support the award of distribution points under section 2G2.2(b). Accordingly, any error on the district court’s part cannot be deemed to have been plain. See United States v. Olano, 507 U.S. 725, 734, 113 S.Ct. 1770 , 123 L.Ed.2d 508 (1993) (no plain error unless error is clear under “current law”); United States v. Thompson, 82 F.3d 849, 856 (9th Cir.1996) (“Because of the circuit split, the lack of controlling authority, and the fact that there is at least some room for doubt about the outcome of this issue, we cannot brand the court’s…