Argued: October 20, 2016
from the United States District Court for the Eastern
District of Kentucky at Pikeville. No. 7:15-cr-00004-Danny C.
Reeves, District Judge.
Athanasia N. Lewis, Glenn Martin Hammond Law Office,
Pikeville, Kentucky, for Appellant.
E. Hancock, United States Attorney's Office, Lexington,
Kentucky, for Appellee.
Stephen W. Owens, Pikeville, Kentucky, for Appellant.
E. Hancock, Charles P. Wisdom Jr., United States
Attorney's Office, Lexington, Kentucky, for Appellee.
Before: MERRITT, BATCHELDER, and ROGERS, Circuit Judges.
M. BATCHELDER, Circuit Judge.
Dunning was indicted for knowingly receiving and possessing
child pornography in violation of 18 U.S.C. § 2252(a)(2)
and (a)(4)(B). He moved to compel discovery and to suppress
evidence that the police seized from his home. After the
district court denied his motions and his request for an
evidentiary hearing, Dunning entered into a conditional plea
agreement, preserving his right to appeal and pleading guilty
to one count of knowingly receiving material involving the
sexual exploitation of minors in violation of 18 U.S.C.
§ 2252(a)(2). The district court sentenced him to 165
argues on appeal that the district court erred by denying his
motion to suppress evidence, that 18 U.S.C. § 2252 is
unconstitutionally vague because it provides a stiffer
penalty for receipt than for possession of child pornography,
and that his sentence is procedurally and substantively
unreasonable. We AFFIRM his conviction and sentence.
Kentucky State Police Detective twice used Nordic Mule, a
program that is part of a law enforcement software package
known as the Child Protection System (CPS), to search for IP
addresses that had recently shared child pornography on the
peer-to-peer file-sharing network eDonkey (a.k.a. eMule). The
software locates specified files on public peer-to-peer
networks and records the IP addresses that have downloaded
and made available for sharing files containing child sexual
exploitation. When the software finds shared materials on
these public networks, it logs the "date, time, hash
values, filename, and IP address." After the second CPS
inquiry and report, the detective obtained a search warrant
for Dunning's residence.
the execution of the search warrant, the police seized
numerous electronic devices, including computers, iPhones,
and iPads, which contained over 22, 000 images and videos
depicting the sexual exploitation of minors. Some images
showed prepubescent children engaged in sexually explicit
conduct with adults.
his indictment, Dunning moved for discovery, seeking, among
other things, the source code for the software that the
detective relied on for the search warrant. The court ordered
a response to Dunning's motion and the government
responded, stating with regard to the software that:
The program [the] Detective  used when conducting his
search for CP images is part of the Child Rescue Coalition,
which is a private non-profit organization. The source code
and program are proprietary and are not in the possession of
the United States. The data base [sic] used in this case
evolved from the program formerly known as the Wyoming tool.
court then denied without prejudice Dunning's motion for
discovery. Dunning also moved to suppress evidence that the
police seized from his home, arguing that the warrant
application was not supported by probable cause because the
detective used software of uncertain reliability and accuracy
to obtain the warrant, and that he had a reasonable
expectation of privacy in the files stored on his computer.
The district court denied Dunning's motion to suppress.
then pled guilty to a violation of 18 U.S.C. §
2252(a)(2) for knowingly receiving material involving the
sexual exploitation of minors, and the district court