United States v. Groce, 14–50272.

• Decision Date: 28 April 2015
• Docket Number: No. 14–50272.,14–50272.
• Parties: UNITED STATES of America, Plaintiff–Appellee v. Peter Abraham GROCE, Defendant–Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

784 F.3d 291

UNITED STATES of America, Plaintiff–Appellee

v.Peter Abraham GROCE, Defendant–Appellant.

No. 14–50272.

United States Court of Appeals, Fifth Circuit.

April 28, 2015.

Joseph H. Gay, Jr., Assistant U.S. Attorney, Mark Randolph Stelmach, Esq., Assistant U.S. Attorney, U.S. Attorney's Office, Western District of Texas, San Antonio, TX, for Plaintiff–Appellee.

Adam Lake Kobs, Law Offices of Adam Kobs, San Antonio, TX, for Defendant–Appellant.

Appeal from the United States District Court for the Western District of Texas.

Before JONES, BARKSDALE, and PRADO, Circuit Judges.

Opinion

EDITH H. JONES, Circuit Judge:

Peter Groce pleaded guilty to one count of receiving child pornography in violation of 18 U.S.C. § 2252(a)(2). In calculating Groce's guidelines range, the district court applied enhancements for distributing child pornography for the receipt of a non-pecuniary thing of value under U.S.S.G. § 2G2.2(b)(3)(B) and engaging in a pattern of activity involving sexual abuse or exploitation of a minor under U.S.S.G. § 2G2.2(b)(5). As calculated by the PSR, Groce's guidelines range was 360 months to life imprisonment. The district court sentenced Groce to 240 months imprisonment—the statutory maximum.

On appeal, Groce argues that the district court incorrectly applied the distribution and pattern-of-activity enhancements. He also contends his sentence is substantively unreasonable. Because Groce's arguments are meritless and any error was harmless, we AFFIRM.

BACKGROUND

The arguments Groce makes on appeal require briefly examining the graphic details of his crime. On July 16, 2011, law enforcement in Converse, Texas received information that Groce had exposed himself to two underage girls while they were playing video games at his house. Groce then began touching himself and asked the girls if they wanted to touch his genitals. A few minutes later, Groce stood up while still exposed, approached the girls, and began jumping up and down.

When the police confronted Groce, he admitted that the incident had occurred. Groce had been watching child pornography, when one of the girls entered the room. Groce did not attempt to pull his pants up or cover himself. Instead, he invited the child to touch his genitals, which she did momentarily before backing away. Groce made similar advances on the second girl when she entered the room a few minutes later. The second child, however, did not touch Groce's genitals.

After Groce described these events, police confiscated his computer and five CDs. A search of the electronic media revealed forty-three images and twenty-three videos depicting adults engaging in sexual acts with minors. Some of the minors depicted were as young as eighteen months old. The computer also contained a peer-to-peer file sharing program called “Frostwire.” Groce admitted that he often installed and uninstalled file sharing programs like Frostwire to view child pornography. When asked about the program, Groce said: “I was always careful not to allow anybody to download much off of me. To be honest about it, it doesn't have anything to do with my feelings of distribution, it just has to do with I didn't want to get caught.” Groce's search history further revealed that he actively sought child pornography. Groce explained that he would enter terms like “lolita,” and “pthc, which stands for preteen hardcore,” into Frostwire or Google to find his desired content. In addition to seeking child pornography, Groce also searched for information on “how to convince girls to have sex” and “how they convince kids to have sex.”

Nearly a year later, in May 2012, Converse police again received a report that Groce had exposed himself to a minor.

This time, Groce lured the eleven year old victim behind a shed in his backyard. Groce then unzipped his pants, exposed his genitals, and rubbed and squeezed them. Disturbingly, the child indicated that similar incidents had occurred at least ten times in 2012, and forty times in 2011.

Converse police referred Groce's case to federal prosecutors. A grand jury indicted Groce on one count of receiving child pornography in violation of 18 U.S.C. § 2252(a)(2) and two counts of possessing child pornography in violation of 18 U.S.C. § 2252(a)(4)(B). In exchange for dismissing the two possession counts, Groce pleaded guilty to one count of receiving child pornography. Groce's guideline range, according to the PSR, was 360 months to life imprisonment. After hearing arguments on Groce's objections, the district court sentenced Groce to the statutory maximum of 240 months. Groce now appeals his sentence.

STANDARD OF REVIEW

This court reviews a sentencing decision for reasonableness using a two-step process. Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 597, 169 L.Ed.2d 445 (2007). First, the court determines whether the district court committed any significant procedural error.Id. Under the first step, this court reviews “the district court's interpretation or application of the sentencing guidelines de novo, and its factual findings for clear error.” United States v. Scott, 654 F.3d 552, 555 (5th Cir.2011). If there is no procedural error or the error is harmless, this court then reviews the substantive reasonableness of the sentence imposed for abuse of discretion. United States v. Delgado–Martinez, 564 F.3d 750, 754 (5th Cir.2009) ; see also Gall, 552 U.S. at 51, 128 S.Ct. at 597.

DISCUSSION

Groce raises three major issues on appeal. First, Groce contends that § 2G2.2(b)(3)(B) does not apply because he never distributed the pornography or expected something of value in return. Second, Groce argues that § 2G2.2(b)(5) is inapplicable because he never abused or exploited children. Finally, Groce complains that his sentence is substantively unreasonable. We will discuss each contention.

I.

Groce first challenges the applicability of § 2G2.2(b)(3)(B). That section imposes a five-level enhancement if the offense involved “[d]istribution for the receipt, or expectation of receipt, of a thing of value, but not for pecuniary gain.” U.S.S.G. § 2G2.2(b)(3)(B). This includes any “bartering or other in-kind transaction, that is conducted for a thing of value, but not for profit.” Id. cmt. n. 1. The archetypal example involves the “bartering of child pornographic material ... in exchange for other child pornographic material[.]” Id. Groce contends the enhancement does not apply because there is no evidence Groce distributed any child pornography and Groce never expected anything in return for sharing his files.

Generally, when a defendant knowingly uses peer-to-peer file sharing software, however, he engages in the kind of distribution contemplated by § 2G2.2(b)(3)(B). A peer-to-peer file sharing program “lets users exchange digital files through a network of linked computers.” United States v. Richardson, 713 F.3d 232, 233 (5th Cir.2013), cert. denied, ––– U.S. ––––, 134 S.Ct. 230, 187 L.Ed.2d 171 (2013). By using this software as Groce has, the user agrees to distribute the child pornography on his computer in exchange for additional child pornography. This is precisely the kind of exchange contemplated by § 2G2.2(b)(3)(B).

This conclusion is nothing new. Although this court has often held that knowing use of peer-to-peer file sharing software triggers § 2G2.2(b)(3)(B), we have not done so in a published opinion. See United States v. Flores, 540 Fed.Appx. 405, 405 (5th Cir.2013) (unpublished) (applying § 2G2.2(b)(3)(B) because “[t]he undisputed evidence shows that Flores had the necessary technological understanding of the peer-to-peer file sharing software to use the software to obtain images of child pornography”); United States v. Desadier, 495 Fed.Appx. 501, 503 (5th Cir.2012) (unpublished) (same); United States v. Onken, 440 Fed.Appx. 304, 305 (5th Cir.2011) (unpublished) (same); United States v. Moore, 328 Fed.Appx. 308, 309 (5th Cir.2009) (unpublished) (applying § 2G2.2(b)(3)(B) because “[w]here ... the defendant uses file-sharing software to obtain images of child pornography, there is a natural expectation that he will do his bit for the relationship by sending or continuing to send his own images in return”) (internal quotation marks omitted). Based on § 2G2.2(b)(3)(B) itself, its accompanying comments, and these persuasive cases, we now formally adopt this longstanding interpretation.

Groce knowingly used Frostwire, a type of peer-to-peer file sharing software, to download and distribute child pornography. Groce admitted installing and uninstalling peer-to-peer software numerous times. Groce was familiar with search terms that return images of child pornography. Groce knew that other users could download his files and that, by allowing users to do so, he would be distributing child pornography. Finally, Groce admitted that he “was always careful not to allow anybody to download much off of me,” implying that he knowingly let some users download from him. The district court thus correctly concluded that Groce distributed child pornography in exchange for a non-pecuniary thing value.¹

II.

Next, Groce challenges the application of § 2G2.2(b)(5), which imposes a five-level enhancement if the defendant “engag[ed] in a pattern of activity involving the sexual abuse or exploitation of a minor.” This enhancement does not apply, according to Groce, because his conduct only involved exposure, “and never involved contact of any kind.” Therefore, Groce never abused or exploited a minor within the meaning of § 2G2.2(b)(5).

The guidelines define sexual abuse or exploitation of a minor as: (A) conduct described in various federal statutes, (B) an offense under state law that would violate the same federal statutes if the offense occurred in the territorial jurisdiction of the United States, or (C) an attempt or conspiracy to commit any of the offenses under (A) or (B). U.S.S.G. § 2G2.2 cmt. n. 1. One of the federal statutes referenced in subsection (A) is 18 U.S.C. § 2241, which among other things...