United States v. McManus

• Decision Date: 30 October 2013
• Docket Number: No. 12–4901.,12–4901.
• Citation: 734 F.3d 315
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. William Devon McMANUS, Defendant–Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

734 F.3d 315

UNITED STATES of America, Plaintiff–Appellee,

v.William Devon McMANUS, Defendant–Appellant.

No. 12–4901.

United States Court of Appeals, Fourth Circuit.

Argued: Sept. 20, 2013.

Decided: Oct. 30, 2013.

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.

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.

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 his sentence on the ground that the district court improperly calculated the applicable Sentencing Guideline range. For the reasons that follow, we vacate and remand for resentencing.

I.

McManus used a file-sharing computer program known as Gigatribe to acquire and maintain images and videos of child pornography. Gigatribe allows users to share files with other users with whom they have become “friends” through an invitation and acceptance feature of the program. 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. An FBI agent downloaded some of these files from 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 base possession offense level. This enhancement applies when a defendant has “distributed” child pornography “for the receipt, or expectation of receipt, of a thing of value, but not for pecuniary gain.” Applying this enhancement, the district court concluded that McManus's offense level was 33 and his criminal history category was I.¹ 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 offense, resulting in a sentence of 72 months' imprisonment.³

II.

On appeal, McManus contends that his sentence is procedurally unreasonable because the district 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. Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). 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). The review proceeds in two parts. We first determine whether the district court committed any significant procedural error. Id. If the sentence is procedurally sound, we review its substantive reasonableness to determine whether in the totality of the circumstances the district court abused its discretion by concluding that the sentence satisfies the standards set out in 18 U.S.C. § 3553(a). Gall, 552 U.S. at 51, 128 S.Ct. 586.

Interpretation of the Sentencing Guidelines is a question of law that we review de novo. United States v. Price, 711 F.3d 455, 458 (4th Cir.2013). “Although the sentencing guidelines are only advisory, improper calculation of a guideline range constitutes significant procedural error, making the sentence procedurally unreasonable and subject to being vacated.” United States v. Hargrove, 701 F.3d 156, 161 (4th Cir.2012). 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 file-sharing program to distribute child pornography is a question of first impression in this Circuit. Strieper, 666 F.3d at 295 (finding that we have not yet answered this question and declining to do so based on the procedural posture of the case). The central issues before us are the meaning of 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 we turn to other evidence to interpret the meaning of the provision ... including the Sentencing Guidelines commentary.” Ashford, 718 F.3d at 382 (alteration in original) (internal quotation marks 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 meaning of the phrase at issue is unambiguous. It is clear from the text of the Guidelines that § 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). 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 indicates the type of additional proof that is required to trigger § (B). If the Government proves distribution, it must then prove that the defendant distributed pornography with the specific purpose of securing some kind of benefit in exchange. The Government must show that the defendant conditioned his decision to distribute his files on his belief that he would receive something of value in return. The requisite proof of intent is the same whether the exchange is realized (“receipt”) or not (“expectation of 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 anything other than its commonly understood meaning. See United States v. Powell, 680 F.3d 350, 355 (4th Cir.2012). However, it is important to note that an expectation is more than a mere 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 enhancement by a preponderance of the evidence. United States v. Grubbs, 585 F.3d 793, 799–803 (4th Cir.2009). In light of the above, to trigger the § 2G2.2(b)(3)(B) five-level enhancement, the Government must show that the defendant: 1) knowingly made child pornography in his possession available to others by some means, and 2)...