United States v. McManus, No. 12-4901 (4th Cir. 2013)

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Justia Opinion Summary

Defendant appealed his sentence after pleading guilty to one count of Possession of Child Pornography. The court concluded that the district court improperly applied the five-level sentencing enhancement under U.S.S.G. 2G2.(b)(3)(B), which resulted in improper calculation of defendant's sentencing range. The court declined to adopt the Government's proposed reciprocity rule by applying the enhancement to every Gigatribe distribution offense absent any evidence of the particular defendant's state of mind. The district court's reliance on an improperly calculated sentencing range constituted significant procedural error and the error was not harmless. Accordingly, the court vacated and remanded for resentencing.

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PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-4901 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. WILLIAM DEVON MCMANUS, Defendant - Appellant. 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: September 20, 2013 Decided: October 30, 2013 Before GREGORY and DUNCAN, Circuit Judges, and Samuel G. WILSON, United States District Judge for the Western District of Virginia, sitting by designation. Vacated and remanded for resentencing by published opinion. Judge Duncan wrote the opinion, in which Judge Gregory and Judge Wilson joined. 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. DUNCAN, Circuit Judge: William Devon McManus pleaded guilty to one count of Possession of Child Pornography in violation of 18 U.S.C. § 2252A(a)(5)(B) and (b)(2). He was sentenced to 72 months imprisonment and a subsequent 10 years supervised release. McManus appeals district his court sentence improperly on the ground calculated Sentencing Guideline range. the that the applicable For the reasons that follow, we vacate and remand for resentencing. 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 Gigatribe allows users to share files with invitation whom they have and acceptance become feature friends of the A user is not able to see or access another user s 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 McManus s Gigatribe account, leading to McManus s arrest and indictment. There is no evidence in the record to indicate how the FBI agent gained access to McManus s restricted shared folder. The FBI agent gave McManus nothing in exchange for the files he downloaded and there is no evidence that any other individual downloaded pornographic files from McManus. At the sentencing hearing following McManus s guilty plea, the district court applied a five-level enhancement under United States Sentencing Guideline § 2G2.2(b)(3)(B) to McManus s enhancement child base applies pornography possession when for a offense defendant the receipt, level. has or This distributed expectation of receipt, of a thing of value, but not for pecuniary gain. Applying that this McManus s enhancement, offense history category was I. 1 the level district was 33 court and his concluded criminal The district court calculated a sentencing range of 135 to 168 months which it reduced to a range of 120 to 120 months to comply with the statutory maximum. 2 The district court applied a downward variance based primarily on the relative seriousness of McManus s 1 McManus does not challenge any of the district court s other non-distribution enhancements under § 2G2.2. 2 See 18 U.S.C. § 2252A(b)(2). 3 offense, resulting in a sentence of 72 months his sentence imprisonment. 3 II. On appeal, procedurally McManus contends unreasonable that because the district is court improperly calculated his Guideline range under U.S.S.G. § 2G2.2(b). He argues that the district court erred by applying the five-level enhancement under § 2G2.2(b)(3)(B) instead of the two-level enhancement for simple distribution under § 2G2.2(b)(3)(F). We review criminal sentences for reasonableness using an abuse of discretion standard. 552 U.S. 38, 51 (2007). Gall v. United States, We review the district court s factual findings for clear error and its legal conclusions de novo. United States v. Strieper, 666 F.3d 288, 292 (4th Cir. 2012). determine The review proceeds in two parts. whether significant procedurally the procedural sound, district court error. Id. we review If We first committed the its sentence any is substantive reasonableness to determine whether in the totality of the 3 McManus does not challenge the district court s imposition of a ten-year period of supervised release. A term of supervised release from one year up to life is permissible for sex offenses. U.S.S.G. § 5D1.2(b). 4 circumstances the district court abused its discretion by concluding that the sentence satisfies the standards set out in 18 U.S.C. § 3553(a). Interpretation of Gall, 552 U.S. at 51. the Sentencing question of law that we review de novo. Guidelines guidelines calculation of procedural error, a are guideline only range making the Although the advisory, constitutes sentence unreasonable and subject to being vacated. F.3d 156, 161 (4th Cir. 2012). a United States v. Price, 711 F.3d 455, 458 (4th Cir. 2013). sentencing is improper significant procedurally Hargrove, 701 However, sentencing error is subject to harmlessness review. Sentencing error is harmless if the resulting sentence [is] not longer than that to which [the defendant] would otherwise be subject. United States v. Mehta, 594 F.3d 277, 283 (4th Cir. 2010) (quoting United States v. Stokes, 261 F.3d 496, 499 (4th Cir. 2001)). III. The proper manner of applying the five-level §2G2.2(b)(3)(B) enhancement to a defendant s use of a filesharing program to distribute child pornography question of first impression in this Circuit. is a Strieper, 666 F.3d at 295 (finding that we have not yet answered this 5 question and declining to do so based on the procedural posture of the case). meaning of the The central issues before us are the phrase [d]istribution for the ... expectation of receipt[] of a thing of value, and what evidence constitutes sufficient proof that a defendant had such an expectation. U.S.S.G. § 2G2.2(b)(3)(B). Although a number of other circuits have interpreted this phrase, we have not, and it is incumbent upon us to do so according to the ordinary rules of statutory construction. Strieper, 666 F.3d at 293-94. A. When interpreting the Sentencing Guidelines, [a]s in all cases of statutory interpretation, our inquiry begins with the text of the statute. United States v. Ashford, 718 F.3d 377, 382 (4th Cir. 2013) (quoting Chesapeake Ranch Water Co. v. Bd. of Comm rs of Calvert Cnty., 401 F.3d 274, 279 (4th Cir. 2005)). We determine the plainness or ambiguity of the statutory language ... by reference to the language itself, the specific context in which that language is used, and the broader context of the statute as a whole. United States ex rel. Carter v. Halliburton Co., 710 F.3d 171, 189 (4th Cir. 2013) (internal quotation marks and citations omitted). [W]here the statutory language is ambiguous other we turn to 6 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, phrase at issue is unambiguous. of the Guidelines that § the meaning of the It is clear from the text 2G2.2(b)(3)(F) is a residual enhancement and that application of §§ 2G2.2(b)(3)(A) - (E) require proof beyond that necessary to trigger § (F). 7 In United States v. Layton, we held that the elements of § (F) are satisfied when a defendant knowingly permits others to access and retrieve child pornography files in the defendant s possession, even if he does so passively. 564 F.3d 330, 335 (4th Cir. 2009). A plain reading of the text also additional indicates required to the type trigger distribution, distributed of (B). If must it § then prove pornography with the that Government that the proof the specific securing some kind of benefit in exchange. is proves defendant purpose of The Government must show that the defendant conditioned his decision to distribute his files on his belief that he would receive something intent of is ( receipt ) value the or in same not return. whether The the ( expectation requisite exchange of is proof of realized receipt ). To the extent that there is any dispute about the meaning of a thing of value, but not ... pecuniary gain, that term is defined in the application notes, and includes the exchange of child pornographic materials. U.S.S.G. § 2G2.2, cmt. 1. There is no indication in the text of the statute that expectation should be given commonly understood meaning. 680 F.3d 350, 355 (4th anything other than its See United States v. Powell, Cir. 2012). However, it is important to note that an expectation is more than a mere 8 hope. A thing that is expected is reasonably likely to occur, while a thing that is hoped for is at best merely possible. The burden is on the Government to prove the facts needed to support a sentencing preponderance of the evidence. enhancement to trigger the § a United States v. Grubbs, 585 F.3d 793, 799-803 (4th Cir. 2009). above, by In light of the 2G2.2(b)(3)(B) five-level enhancement, the Government must show that the defendant: 1) knowingly available to made child others by pornography some means, in and his 2) possession made his pornographic materials available for the specific purpose of obtaining something of valuable consideration, such as more pornography, whether or not he actually succeeded in obtaining the desired thing of value. IV. In this case, the parties agree that McManus s acts are sufficient to satisfy at least the first element of proof and to trigger the residual distribution enhancement under Layton. The Government argues that McManus s use of Gigatribe to distribute child pornography constitutes acts greater than those seen in Layton, and that proof of those acts is sufficient to satisfy 9 the additional burden of proof for the five-level enhancement. Appellee s Br. 10. It contends that: 1) the invitation and acceptance feature of Gigatribe renders any distribution intentionally used containing of the reciprocal, inherently use and 2) McManus a shared folder Gigatribe pornographic to material create with program the for knowledge that other users could access and download those files. 4 We address, and reject, these arguments in turn. A. The inherent Government first reciprocity in argues the that [t]here invitation and is an acceptance process necessary to gain mutual access to users files which exceeds the distribution seen in Layton, and supports U.S.S.G. 2G2.2(b)(3)(B) s expectation resulting five-level increase. of receipt Appellee s Br. 10. and This argument relies primarily on the distinction between open file-sharing programs, like the one used in Layton, and closed file-sharing programs, like Gigatribe. 4 In an open The Government makes a third argument that the file selection feature of Gigatribe renders its use an act materially greater than use of the program in Layton. It contends that users of Gigatribe are more likely than users of other programs to know the content of the files they are downloading because they are able to visually preview and individually select files to download. Because McManus does not contend that he was not in possession of child pornography or that he downloaded such files unintentionally, this feature of Gigatribe is irrelevant to our analysis. 10 program, if a user chooses to create a shared folder, its contents are available to all other users. In Gigatribe, if a user chooses to create a shared folder, its contents are available only to those other users with whom he has become friends, either by inviting them or by accepting invitations from them. Although the Government does not elaborate on its proposition, it seems to be arguing that no Gigatribe user would become friends with another user unless he believed that the other user would allow access to his files. The district court relied on this implied reasoning to conclude that the five-level enhancement was warranted because you re inviting people in and you re sharing so that they will let you see their stuff, you show them your stuff. J.A. 52-53. Affirming the district court s reliance on the Government s inherent reciprocity argument would establish a per se rule applying the five-level enhancement to every Gigatribe distribution offense absent any evidence of the particular defendant s state of mind. 5 We decline to adopt the Government s proposed rule. 5 At oral argument the Government contended that its position would not result in a per se application of the five-level enhancement. However, it was unable to explain how its proposed rule could be individualized. 11 i. Because § 2G2.2(b)(3)(B) requires proof of an individual defendant s mental state to trigger the fivelevel enhancement, a per se rule is inappropriate. Beyond its attempt to evade § (B) s requirement of individualized proof, the Government s proposed per se rule is simply unsupported by the facts. Although we have not addressed this question, both the Tenth and Eleventh Circuits have recognized the fallacy of inherent-reciprocity reasoning file-sharing programs. Tenth Circuit held in cases involving open In United States v. Geiner, the that because file-sharing programs generally allow users to retrieve files without sharing any files of their own, pornography using necessarily do particularly when a a so defendant who file-sharing in the exchange defendant distributes network for does similar understands child not that files, these files are available even if he chooses not to share his own. 498 F.3d 1104, 1111 (10th Cir. 2007). Geiner emphasized the Guideline s requirement that distribution be for the receipt or expectation of receipt, and concluded that expectation determination. must be an Id. 12 individualized factual In United States v. Spriggs, the Eleventh Circuit held that a user s mere hope that a peer would reciprocate his generosity was insufficient to show distribution with an expectation of receipt [w]ithout evidence that [that user] and another user conditioned their decisions to share their illicit image files. collections on a return promise to 666 F.3d 1284, 1288 (11th Cir. 2012). share In United States v. Vadnais, the Eleventh Circuit held that logic compels required the for require[s] purpose. conclusion the that that five-level the more [than use] distribution occur for be because enhancement, must it a specified 667 F.3d 1206, 1209 (11th Cir. 2012). Vadnais held that inferring an expectation of receipt from mere use is unsupported by the operation of an open file-sharing program because freeloading is possible. Id. As Geiner recognized, knowing use of a sharing feature proves only an intent to distribute because a user does not need to share child pornography to get pornography. at 1210. A knowledgeable file-share Vadnais, 667 F.3d user ha[s] no expectation of receiving any more child pornography merely by sharing his files because he understands that he does not need to make his files available to gain access to those of other users. Id. 13 ii. Contrary to the Government s contention, Gigatribe s invitation and analysis. acceptance A per se feature does application not of the alter this five-level enhancement might be appropriate, for example, in a case where a defendant used a website which permitted users to download a file of child pornography only if they first submitted a file of child pornography that would be redistributed through the same mechanism to other users. In such a program, use of the website would necessarily satisfy all of the requirements of § (B) because users would knowingly distribute pornography, necessarily intend to receive pornography in return, and reasonably expect to receive pornography in exchange for their pornography because that would be the only purpose of the system. This fictitious system is inherently reciprocal in a way that would allow enhancement. per se application of the Guideline The same cannot be said for Gigatribe. The undisputed facts found by the district court show that within the Gigatribe system: 1) the existence and content of a user s files are unknown to other users absent direct communication, and 2) a user does not necessarily have access to another user s files merely because they are 14 Gigatribe friends. The Government s own evidence shows 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. Appellee s 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 accept friends without sharing files. and invite A and A user can also make files available only to selected friends and can password protect certain files accessible to friends. within folders that are otherwise Moreover, a user s files are not visible to any other user who is not that user s friend, and no user has any reason to assume that any other user possesses shared files which he would consider valuable because Gigatribe can host any type of music, picture, or 15 video file. Based on these features, we must conclude that a user who understands the basic operation of the Gigatribe program can have no reasonable expectation of gaining access to pornographic files or any other thing of value solely because he creates a shared folder populated with files containing child pornography. Although it is perhaps more likely that a Gigatribe user, as compared to the user of an open system, would only become friends with, and therefore distribute files to, other users who he believed possessed pornographic files and were willing presented no to exchange evidence to them, support the this Government supposition. has It submitted no evidence that McManus distributed his files to any user as a barter or trade, that Gigatribe enforces a rule that friends must make files available to each other, or that a strong custom has arisen within the Gigatribe community to that same effect. The Government submitted no evidence that McManus screened possible friends based on their likelihood of possessing valuable files inviting them or accepting their invitations. contents shared and files accomplish even are such the existence unknown, screening directly with other users. the of only would be a Because the Gigatribe way by a before user user s could communicating If users do in fact communicate 16 in this manner, then the Government should be able to gather actual individualized evidence to satisfy the second element of § (B) by seizing defendants chat logs with undercover agents and other users. The Government s argument is purely speculative, and all but that the the which most superficial speculation the FBI underlying is agent unreasonable. acquired conviction Government s investigation in the inherent-reciprocity Even proof this demonstrates case the for way in McManus s the The claim. undercuts was agent able to download pornography from McManus without supplying any like files in return, and there is no evidence that the agent represented to willing to trade. distribute child possible based Gigatribe user McManus that he had files and was Whether or not Gigatribe users routinely pornography on the could gratuitously, features distribute of his the it is system files clearly that without a any reasonable expectation of receiving anything of value in exchange. Therefore, the proposed per se rule is inappropriate. B. Because we decline to apply the Government s proposed per se rule, we must vacate McManus s sentence unless the Government submitted sufficient individualized evidence of 17 McManus s intent to distribute his pornographic materials in expectation of receipt of a thing of value. The only individualized evidence that the Government offers is that McManus knew of the file-sharing features of Gigatribe, when he used pornography the program files and to that acquire he and was maintain aware that child files utilized in Gigatribe could be shared with other Gigatribe users. Appellee s Br. 10. This evidence proves only the first element of § (B) and is only sufficient to trigger § (F), an enhancement that McManus concedes is appropriate. The Government district court failed to improperly carry its applied burden. the The five-level enhancement, resulting in improper calculation of McManus s sentencing range. The improperly calculated significant procedural district court s sentencing error and reliance range McManus s on an constitutes sentence is subject to vacation unless the error was harmless. V. McManus s properly calculated offense level of 30 would have generated a Guideline range of 97 to 120 months imprisonment. Although the district court s 72-month sentence is well below the bottom of this corrected range, we cannot say with certainty that the district court would 18 not have sentenced McManus to even less time in custody if it had used the proper starting point. at 284. Therefore, See Mehta, 594 F.3d we cannot say that the error was harmless and remand for resentencing is necessary. Because we vacate McManus s sentence and remand on the ground that it is prejudicially procedurally unreasonable, we need not address its substantive reasonableness. VI. For the foregoing reasons, the district court s sentence is VACATED AND REMANDED FOR RESENTENCING. 19