United States v. Mabee
| Decision Date | 03 September 2014 |
| Docket Number | No. 13–2496.,13–2496. |
| Citation | 765 F.3d 666 |
| Parties | UNITED STATES of America, Plaintiff–Appellee, v. Ronald Eugene MABEE, Defendant–Appellant. |
| Court | U.S. Court of Appeals — Sixth Circuit |
OPINION TEXT STARTS HERE
ON BRIEF:Paul L. Nelson, Federal Public Defender's Office, Grand Rapids, Michigan, for Appellant. Sean M. Lewis, United States Attorney's Office, Grand Rapids, Michigan, for Appellee.
Before: GIBBONS and McKEAGUE, Circuit Judges; LAWSON, * District Judge.
Ronald Mabee appeals his 121–month sentence for distribution of child pornography on the ground that the district court misapplied U.S.S.G. § 2G2.2(b)(3)(B), which calls for a five-level enhancement to the offense level for a defendant who distributes child pornography for “the receipt, or expectation of receipt, of a thing of value, but not for pecuniary gain.” Mabee argues that the enhancement was unjustified because the record showed only that he used a file-sharing program to download and store child pornography, and there was no evidence that he engaged in individual trading of images or videos with other persons. The government contends that Mabee waived the issue when he did not object to, and in fact agreed with, the district court's guideline calculations at the sentence hearing. We hold that although Mabee forfeited his claim by failing to object in the district court, thereby relegating the issue to plain error review, there was no waiver. We also hold that the district court could have relied on circumstantial evidence in the record that Mabee made his own computer files available because he expected to receive additional pornography from others, and therefore it did not plainly err by applying the enhancement. We affirm Mabee's sentence.
Using the “ARES Peer–to–Peer (P2P) network,” agents of the Department of Homeland Security investigations division downloaded child pornography images from an Internet address assigned to defendant Ronald Mabee on six different occasions between May 11, 2012 and May 30, 2012. On December 12, 2012, agents confronted Mabee at his home, and during the interview Mabee admitted that had used the ARES software to download child pornography. Later, forensic examiners of Mabee's computer recovered at least 73 images and 14 videos, as well as evidence that the defendant had “searched extensively for child pornography using the ARES program.” All of the videos and one of the images had been stored in a folder named “My Shared Folder,” which meant that they were available for other users of the ARES software to download from Mabee's computer.
Mabee was charged in a three-count indictment with distributing, receiving, and possessing child pornography. Mabee pleaded guilty to the distribution count; the other counts were dismissed by the government under a plea agreement. In the section devoted to the factual basis for the offense, Mabee's Rule 11 plea agreement stated that when agents confronted him at his home on December 12, 2012, Mabee admitted that “he knew that the child pornography he had downloaded using ARES, including [the files named in the indictment] was available for download by other ARES users.” As to the possible sentence, the agreement stated that “[t]he defendant and the U.S. Attorney's Office have no agreement as to the applicable Sentencing Guidelines factors or the appropriate guideline range,” and “[b]oth parties reserve the right to seek any sentence within the statutory minimum and maximum, and to argue for any criminal history category and score, offense level, specific offense characteristics, adjustments and departures.”
At his plea hearing, when the district court prompted him to explain why he thought that he was guilty, Mabee stated:
MABEE: I downloaded off a program called ARES—
...
MABEE: ... And ARES allows you to download many things, including this material, and I downloaded it and it was distributed, it was sent. It was downloaded through a file that was available to others to download, and that was last summer or last year.
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MABEE: ... I intentionally downloaded the files by names and I intentionally downloaded this file, and ... it was stored on my computer then in a shared file and available for others to download.
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In calculating the offense level, the PSR assigned a base offense level of 22. The probation officer recommended the assessmentof a five-level enhancement to Mabee's base offense level because:
The defendant distributed videos and a child pornography image, via his ARES shared files folder, for the receipt, or expectation of receipt of a thing of value, but not for pecuniary gain. By utilizing the ARES shared file folder, Mr. Mabee shared files which in turn allowed him to accept others['] shared files.
After adding that enhancement and others that Mabee does not contest on appeal, the probation officer arrived at a total offense level of 37. Mabee's criminal history category was I, which yielded an advisory guideline range of 210 to 262 months, the top end of which was adjusted to 240 months, the statutory maximum. 18 U.S.C. § 2252A(a)(2)(A); U.S.S.G. § 5G1.1(c)(1).
Mabee did not object to the PSR, but he filed a sentencing memorandum in which he asked the district court to sentence him below the advisory guidelines range. He provided the following account of his acts:
Mr. Mabee first downloaded a file-sharing program because he believed that he could use it to download classic movies. He did not begin using the program to search for child pornography. When he downloaded the program, he agreed to allow file sharing. He did not foresee the consequences of enabling the “share file” feature when he was installing the program. He did not enable the feature with the expectation that he would benefit from it.
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As Mr. Mabee used the peer-to-peer program, he had difficulty downloading full length feature films and he began exploring other content that was available. Mr. Mabee clicked on a tab titled “erotica.” He began looking at the files that were available; the files were both adult and child pornography files. Mr. Mabee then began to search the program for adult and child pornography. Mr. Mabee viewed child pornography in his home. He did not trade images or videos. He did not create images or videos.
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Mr. Mabee committed this offense by viewing child pornography in his home. The child pornography was created by others. Mr. Mabee did not manufacture child pornography. He did not pay to download child pornography. He did not engage in online chats about children or child pornography.
At the sentencing hearing, Mabee reiterated that he had no objection to the PSR. The court then, on its own, referencing the enhancements for “use of a computer” and the number of images recovered from the computer, reduced the offense level by a total of five levels. The court engaged in the following colloquy with the attorneys and the defendant:
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