Beruflich Dokumente
Kultur Dokumente
No. 12-4901
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro.
Catherine C.
Eagles, District Judge. (1:12-cr-00174-CCE-1)
Argued:
Decided:
ARGUED:
Eugene Ernest Lester, III, SHARPLESS & STAVOLA,
PA, Greensboro, North Carolina, for Appellant.
Anand P.
Ramaswamy,
OFFICE
OF
THE
UNITED
STATES
ATTORNEY,
Greensboro, North Carolina, for Appellee.
ON BRIEF:
Ripley Rand, United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Greensboro, North Carolina, for Appellee.
appeals
district
his
court
sentence
improperly
on
the
ground
calculated
the
that
the
applicable
I.
McManus used a file-sharing computer program known as
Gigatribe
to
acquire
child pornography.
with
other
through
users
an
program.
and
maintain
images
and
videos
of
invitation
whom
they
have
and
acceptance
become
feature
friends
of
the
users files unless: 1) one user has invited the other and
the other has accepted the invitation; and 2) the other
user maintains a shared folder, accessible to friends, that
is populated with files.
McManus created a shared folder and populated it with
the files of child pornography he possessed.
downloaded
some
of
these
files
2
from
An FBI agent
McManuss
Gigatribe
There
The
and
there
is
no
evidence
that
any
other
McManuss
enhancement
child
base
applies
pornography
possession
when
for
offense
defendant
the
receipt,
level.
has
or
This
distributed
expectation
of
this
McManuss
enhancement,
offense
the
level
district
was
33
court
and
his
concluded
criminal
offense,
resulting
in
sentence
of
72
months
his
sentence
imprisonment. 3
II.
On
appeal,
procedurally
McManus
contends
unreasonable
that
because
the
district
is
court
He
argues
that
the
district
court
erred
by
of
the
two-level
enhancement
for
simple
Cir. 2012).
determine
significant
procedurally
the
procedural
sound,
district
court
error.
Id.
we
review
If
We first
committed
the
its
sentence
any
is
substantive
of
the
Sentencing
Guidelines
guidelines
calculation
of
procedural
error,
are
guideline
only
range
making
the
Although the
advisory,
constitutes
sentence
United States v.
is
improper
significant
procedurally
Hargrove, 701
Sentencing error is
III.
The
proper
manner
of
applying
the
five-level
program
to
distribute
child
pornography
is
Strieper,
666 F.3d at 295 (finding that we have not yet answered this
5
of
the
phrase
[d]istribution
for
the
...
U.S.S.G. 2G2.2(b)(3)(B).
Although
the
ordinary
rules
of
statutory
construction.
718 F.3d 377, 382 (4th Cir. 2013) (quoting Chesapeake Ranch
Water Co. v. Bd. of Commrs of Calvert Cnty., 401 F.3d 274,
279
(4th
Cir.
2005)).
We
determine
the
plainness
or
itself,
the
specific
context
in
which
that
710 F.3d 171, 189 (4th Cir. 2013) (internal quotation marks
and citations omitted).
ambiguous
other
we
turn
to
evidence
to
interpret
the
meaning
of
the
provision
Guidelines
commentary.
(alteration
in
...
including
Ashford,
original)
(internal
718
the
Sentencing
F.3d
quotation
at
marks
382
and
citations omitted).
Section 2G2.2 states, in relevant part, that:
If the offense involved:
(A) Distribution for pecuniary gain, increase by
the number of levels from the table in 2B1.1
(Theft,
Property
Destruction,
and
Fraud)
corresponding to the retail value of the material,
but by not less than 5 levels.
(B) Distribution for the receipt, or expectation
of receipt, of a thing of value, but not for
pecuniary gain, increase by 5 levels.
(C) Distribution to a minor, increase by 5 levels.
(D) Distribution to a minor that was intended to
persuade, induce, entice, or coerce the minor to
engage in any illegal activity, other than illegal
activity covered under subdivision (E), increase
by 6 levels.
(E) Distribution to a minor that was intended to
persuade, induce, entice, coerce, or facilitate
the travel of, the minor to engage in prohibited
sexual conduct, increase by 7 levels.
(F) Distribution other than distribution described
in subdivisions (A) through (E), increase by 2
levels.
U.S.S.G. 2G2.2(b)(3).
In the context of the entirety of 2G2.2 and our
precedent
interpreting
its
elements,
the
Guidelines
that
the
meaning
of
the
2G2.2(b)(3)(F)
is
residual
In
and
retrieve
child
pornography
files
in
the
564
also
additional
indicates
required
to
the
type
trigger
distribution,
distributed
it
of
(B).
If
must
then
prove
pornography
with
the
that
Government
that
the
proof
the
specific
is
proves
defendant
purpose
of
The Government
of
is
(receipt)
value
the
or
in
same
not
return.
whether
The
the
(expectation
requisite
exchange
of
is
proof
of
realized
receipt).
To
the
should
be
given
F.3d
350,
355
(4th
anything
other
than
its
Cir.
2012).
However,
it
is
hope.
to
support
sentencing
enhancement
to
trigger
the
by
In light of the
2G2.2(b)(3)(B)
five-level
knowingly
available
to
made
child
others
by
pornography
some
means,
in
and
his
2)
possession
made
his
IV.
In this case, the parties agree that McManuss acts
are sufficient to satisfy at least the first element of
proof and to trigger the residual distribution enhancement
under Layton.
is
sufficient
to
satisfy
9
the
additional
burden
of
Gigatribe
renders
any
distribution
inherently
intentionally
used
containing
use
of
the
reciprocal,
and
2)
McManus
shared
folder
Gigatribe
pornographic
to
material
create
with
program
the
for
knowledge
that
We
Government
reciprocity
first
in
argues
the
that
[t]here
invitation
and
is
an
acceptance
2G2.2(b)(3)(B)s
expectation
of
receipt
and
This
In an open
In Gigatribe,
the
Government
does
not
elaborate
on
its
The
the
five-level
enhancement
was
warranted
because
We decline to adopt
i.
Because
2G2.2(b)(3)(B)
requires
proof
of
an
individual defendants mental state to trigger the fivelevel enhancement, a per se rule is inappropriate.
Beyond
the
Governments
proposed
per
se
rule
is
simply
reasoning
file-sharing programs.
Tenth
Circuit
held
in
cases
involving
open
that
because
file-sharing
programs
of
their
own,
pornography
using
necessarily
do
particularly
when
so
defendant
who
file-sharing
in
the
exchange
defendant
distributes
network
for
does
similar
understands
child
not
that
files,
these
498
F.3d
1104,
1111
(10th
Cir.
2007).
Geiner
expectation
determination.
must
be
an
Id.
12
individualized
factual
image
files.
collections
on
return
promise
to
share
In United
the
for
require[s]
purpose.
conclusion
the
that
that
five-level
the
more
[than
use]
enhancement,
distribution
occur
for
must
be
because
it
specified
Vadnais
Id.
As Geiner
1210.
knowledgeable
file-share
ha[s]
no
Id.
13
ii.
Contrary to the Governments contention, Gigatribes
invitation
and
analysis.
acceptance
per
se
feature
does
application
not
of
the
alter
this
five-level
file
of
child
pornography
that
would
be
all
of
the
requirements
of
(B)
because
users
pornography
in
exchange
for
their
pornography
This
allow
enhancement.
per
se
application
of
the
Guideline
within
the
Gigatribe
system:
1)
the
existence
and
14
Gigatribe friends.
that:
A user can prevent anyone from seeing what they
share with other users and can choose to share
everything with all users or just with specific
users .... [I]nformation including thumbnails of
the pictures and/or videos on the ... users [sic]
system are ... only sent if the user on the other
end has physically either invited the user or
accepted to invite of the use [sic]. Users make
several active decisions that contribute to the
distribution of the files.
First, they make an
active decision to download and setup a file
sharing program.
Second, they actively set up a
shared folder and make a choice on the folder and
contents that they share.
Third, they make an
active decision to open and allow access to other
users they friend to see what they have .... A
user can scroll through the available files that
another user has allowed them to see.
Appellees Br. 3-4.
It is apparent that Gigatribe users can freeload in
the same manner as users of open file-sharing programs.
Gigatribe
user
can
maintain
an
account
and
invite
A
and
certain
files
accessible to friends.
within
folders
that
are
otherwise
shared
files
which
he
would
consider
valuable
15
video file.
can
have
no
reasonable
expectation
of
gaining
friends
with,
and
therefore
distribute
files
to,
were
willing
presented
no
to
exchange
evidence
to
them,
support
the
this
Government
supposition.
has
It
likelihood
of
possessing
valuable
files
and
files
accomplish
even
are
such
the
existence
unknown,
screening
the
of
only
would
be
Because the
Gigatribe
way
by
before
user
users
could
communicating
in
this
manner,
then
the
Government
should
be
able
to
of
(B)
by
seizing
defendants
chat
logs
with
but
that
the
the
which
most
superficial
speculation
the
FBI
underlying
is
agent
unreasonable.
acquired
conviction
Governments
investigation
in
the
inherent-reciprocity
Even
proof
this
demonstrates
case
claim.
the
for
way
in
McManuss
undercuts
the
The
was
agent
represented
to
willing to trade.
distribute
possible
Gigatribe
child
based
user
McManus
that
he
had
files
and
was
on
the
could
gratuitously,
features
distribute
of
his
the
it
is
system
files
clearly
that
without
any
Therefore,
the
proposed
per
se
rule
is
inappropriate.
B.
Because we decline to apply the Governments proposed
per se rule, we must vacate McManuss sentence unless the
Government submitted sufficient individualized evidence of
17
The only
he
used
pornography
the
program
files
and
to
that
acquire
he
and
was
maintain
aware
that
child
files
Government
district
court
failed
to
improperly
carry
its
applied
burden.
the
The
five-level
range.
The
improperly
calculated
significant
procedural
district
courts
sentencing
error
and
reliance
range
McManuss
on
an
constitutes
sentence
is
V.
McManuss
properly
calculated
offense
level
of
30
Although
the
district
courts
72-month
Therefore,
Because
VI.
For the foregoing reasons, the district courts sentence is
VACATED AND REMANDED FOR RESENTENCING.
19