Precedents Cited

1) United States v. Harris, 702 F.3d 226 (5th Cir. 2012)

The court invoked United States v. Harris for a foundational sentencing principle: a Presentence Report (PSR) bears “sufficient indicia of reliability” and can be used to make factual findings unless the defendant offers rebuttal evidence showing the PSR is “materially untrue, inaccurate or unreliable.” The Fifth Circuit used Harris to frame the posture of the appeal: Lowe’s objection to the enhancement needed to overcome the evidentiary basis described in the PSR; “mere objections” are generally insufficient.

2) United States v. McGavitt, 28 F.4th 571 (5th Cir. 2022)

United States v. McGavitt served as the doctrinal springboard. The Lowe panel quoted McGavitt for the proposition that the Fifth Circuit had not previously resolved whether coercing a minor to take and send child pornography qualifies as “distribution” under § 2G2.1(b)(3), and it adopted McGavitt’s recognition of “arguably some conflict” within the commentary—between Application Note 1’s exclusion of “mere solicitation” and Application Note 3’s inclusions of aiding/abetting/inducing or conspiring to distribute.

Critically, the Lowe panel used McGavitt to justify a holistic reading of the guideline and commentary: “As a whole,” the text and notes can be reconciled by distinguishing passive requests from conduct involving coercive direction and control that effectively causes production and transfer.

3) United States v. King, 979 F.3d 1075 (5th Cir. 2020)

Lowe cited United States v. King to argue that “distribution” is ordinarily understood as sharing with others, and that there was no evidence he transmitted the materials beyond receipt from the victim. The Fifth Circuit deemed King inapposite for two reasons stated in the opinion: (i) King declined to address the enhancement’s application, and (ii) the facts differed materially—King involved the adult defendant posing minors and producing images himself on a phone, not coercing a child to create and transmit images under threat and direction.

4) United States v. Merrill, 578 F. Supp. 2d 1144 (N.D. Iowa 2008)

Lowe relied on United States v. Merrill, but the Fifth Circuit distinguished it on its facts. The opinion highlights the key difference: in Merrill the “[d]efendant did not ask [the child victim] to send him the fifteen photographs,” whereas Lowe repeatedly demanded, instructed, and coerced production and transmission. The citation functioned less as persuasive authority and more as a contrast case delineating a boundary: not every scenario involving a defendant’s possession of a victim’s images necessarily involves the defendant’s inducement of their transfer.

5) United States v. Hernandez, 894 F.3d 1104 (9th Cir. 2018)

The Fifth Circuit also used United States v. Hernandez to rebut Lowe’s proposed “narrow reading” of “distribution.” The panel quoted Hernandez for its statement that the distribution enhancement is not limited to situations where the defendant transmits illicit materials to a third party. That undercut Lowe’s contention that the enhancement necessarily requires sharing beyond the defendant.

Legal Reasoning

The court’s reasoning is driven by the structure of U.S.S.G. § 2G2.1(b)(3) and the interplay between two commentary provisions:

• Application Note 1 (definition): “Distribution” means “any act” related to the transfer of material, including production and transmission, and it “does not include the mere solicitation” of such material.
• Application Note 3 (modes of liability): A defendant “knowingly engages in distribution” if he (A) committed it, (B) “aided, abetted, counseled, commanded, induced, procured, or willfully caused” it, or (C) conspired to distribute.

The Fifth Circuit acknowledged the “arguable” tension identified in McGavitt: if “mere solicitation” is excluded, how can inducing or causing a victim to send images count as distribution? Lowe resolves that tension by operationalizing a conduct-based line: the enhancement applies when the defendant’s communications are not merely requests, but are coercive directions that exercise control over the minor’s production and transmission.

The panel treated Lowe as an “active participant” in the transfer. It emphasized factual markers that transformed the interaction from solicitation to induced distribution:

• Threat-based compulsion: threats to “block” or “expose” H.H. if she did not comply.
• Specificity of demanded content: explicit directions about what body parts and acts to capture.
• Immediacy and timing control: demands such as “send nudes now,” with emphasis on “now.”
• Means/manner control: instructing how the images were to be sent (via Snapchat) and pressuring compliance.
• Corrective coercion: demanding additional or different images when the victim did not send “precisely what he contemplated.”

In short, the court read Application Note 1’s “mere solicitation” carve-out as preserving a category of passive asking, while Application Note 3 captures situations where the defendant’s conduct causes the creation and transfer of the contraband. Lowe’s “degree of control” over H.H. made the transfer attributable to him for enhancement purposes.

The government also advanced a conspiracy-to-distribute theory under Application Note 3(C), but the Fifth Circuit did not need to rest its holding on conspiracy; the court’s discussion and conclusion focused on Lowe’s inducement/active participation and control consistent with Note 3(B), and on rejecting the characterization of his conduct as “mere solicitation.”

Impact

1) Clarifies the “mere solicitation” boundary in online grooming cases.
The decision signals that where a defendant does more than ask—by threatening consequences, dictating content, demanding immediacy, and exerting coercive control over how and when images are created and sent—courts in the Fifth Circuit may treat that conduct as “distribution” under § 2G2.1(b)(3), even absent onward sharing to third parties.

2) Expands the practical reach of the distribution enhancement in production-by-coercion scenarios.
The opinion reinforces that “distribution” can be satisfied through causing or inducing the victim’s transmission to the defendant. This is especially relevant to Snapchat/DM-based offenses where the defendant’s role is not uploading to public platforms but orchestrating the transfer.

3) Sentencing leverage and litigation focus.
Going forward, disputes may center less on whether files were shared externally and more on the defendant’s messaging conduct: threats, instructions, escalation, insistence on timing, and the extent of control over the victim’s production decisions. Defendants seeking to avoid the enhancement will likely try to frame communications as non-coercive requests and challenge the record’s detail, while the government will highlight grooming dynamics, coercion, and directive language to show inducement or willful causation.

4) Commentary harmonization approach.
The Fifth Circuit’s method—reconciling commentary by drawing a fact-specific line between passive solicitation and coercive inducement—offers a template for future panels confronting guideline notes that appear in tension: the “mere solicitation” exclusion remains meaningful, but it is confined to genuinely passive, non-controlling conduct.