                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 16-4409


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

          v.

STEVE G. SINGO,

                  Defendant - Appellant.



Appeal from the United States District Court for the Northern
District of West Virginia, at Wheeling.     Frederick P. Stamp,
Jr., Senior District Judge. (5:15-cr-00027-FPS-JES-1)


Submitted:   January 26, 2017               Decided:   February 24, 2017


Before TRAXLER and FLOYD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Donald J. Tennant, Jr., TENNANT LAW OFFICES, Wheeling, West
Virginia, for Appellant.     William J. Ihlenfeld, II, United
States Attorney, Stephen L. Vogrin, Assistant United States
Attorney, Wheeling, West Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

       Steve G. Singo was convicted after a jury trial of receipt

and distribution of child pornography, in violation of 18 U.S.C.

§ 2252A(a)(2)(A),       (b)(1)      (2012),    and   possession        of      child

pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B), (b)(2),

and was sentenced to 97 months’ imprisonment.                Singo appeals his

sentence, arguing that the district court erred in applying the

two-level      enhancement    for   distribution     under     U.S.    Sentencing

Guidelines Manual § 2G2.2(b)(3)(F) (2015).              We affirm.

       Singo maintains that the calculation of his base offense

level under USSG § 2G2.2(a)(2) accounted for his distribution of

child pornography and that the two-level enhancement he received

under USSG § 2G2.2(b)(3)(F) for distribution thus amounted to

impermissible double counting.              “Double counting occurs when a

provision of the Guidelines is applied to increase punishment on

the basis of a consideration that has been accounted for by

application of another Guideline provision or by application of

a   statute.”       United    States    v.    Dowell,    771   F.3d     162,    170

(4th Cir. 2014) (internal quotation marks omitted).                   “It is well

established that the Sentencing Commission plainly understands

the concept of double counting, and expressly forbids it where

it is not intended.”         United States v. Schaal, 340 F.3d 196, 198

(4th    Cir.    2003)   (internal      quotation     marks     and     alteration

omitted).      “Accordingly, an adjustment that clearly applies to

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the   conduct      of    an    offense      must        be    imposed      unless”    expressly

excluded.          Id.        (internal         quotation          marks     and     alteration

omitted).          Singo’s         claim     of       impermissible         double        counting

involves a legal interpretation of the Guidelines that we review

de novo.      See id.

      Under USSG § 2G2.2(b)(3)(F), a defendant’s offense level is

to    be   increased          by     two    levels          for   distribution        of    child

pornography that is not to minors and is not for money or other

things of value.          The term “distribution” is broadly defined to

include     “any        act,       including           possession          with     intent        to

distribute,        production,              transmission,               advertisement,           and

transportation, related to the transfer of material involving

the sexual exploitation of a minor.”                               USSG § 2G2.2 cmt. n.1

(emphasis      added).             This     court       has       held     that     “use    of     a

peer-to-peer file-sharing program constitutes ‘distribution’ for

the   purposes      of    [USSG]       § 2G2.2(b)(3)(F).”                  United    States       v.

Layton,    564     F.3d       330,    335    (4th       Cir.      2009).      Thus,        “[w]hen

knowingly using a file-sharing program that allows others to

access     child    pornography            files,       a     defendant     commits        an    act

‘related      to   the        transfer      of        material     involving        the    sexual

exploitation of a minor.’”                 Id. (quoting USSG § 2G2.2 cmt. n.1).

      Here,      undisputed          information             in   the    presentence       report

adopted by the district court makes clear that Singo’s offense

conduct    included       his      use     of     a    file-sharing         network       both    to

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download    and   share     images   and   videos   of   child     pornography.

Singo thus committed an act “related to the transfer of material

involving the sexual exploitation of a minor.”                     USSG § 2G2.2

cmt. n.1.     There is no indication from the record that Singo’s

distribution in this regard was to minors or for money or other

things of value; accordingly, the two-level enhancement under

USSG § 2G2.2(b)(3)(F) was to be applied for his distribution

behavior     unless   the    enhancement     was    prohibited      by    another

Guidelines provision or statute.

      Singo concedes that there is “no explicit language” in USSG

§ 2G2.2    that   would     prohibit   double     counting   for    “any    given

behavior,”     including      the    particular     behavior     of      using   a

file-sharing network to download and share images and videos of

child pornography. 1        He further has not identified any other

Guideline or statutory provision that would expressly forbid the

applicability of the two-level distribution enhancement in his

case. 2   We further observe that other Courts of Appeals that have



      1We observe that Singo references on appeal the two-level
reduction in USSG § 2G2.2(b)(1) in support of his argument of
double counting.    Singo, however, does not explain how the
reduction — which he does not contend applies in his case —
supports his conclusion that impermissible double counting
occurred.   We therefore reject this argument as a basis to
vacate Singo’s sentence.
      2Singo also references 18 U.S.C. § 2252A(a)(2)(A) and the
lack of a special interrogatory submitted to the jury.   Singo,
however, neither establishes the relevance of a lack of such
(Continued)
                                       4
addressed the issue have rejected double counting objections to

the   application    of   USSG      § 2G2.2(b)(3)(F)       in   prosecutions    for

child pornography distribution.              See United States v. Walters,

775 F.3d 778, 784-85 (6th Cir.), cert. denied, 135 S. Ct. 2913

(2015); United States v. Cubero, 754 F.3d 888, 893-95 (11th Cir.

2014); United States v. Reingold, 731 F.3d 204, 227-28 (2d Cir.

2013);    United    States     v.     Chiaradio,     684    F.3d    265,   282-83

(1st Cir.   2012);    United     States      v.   Frakes,   402    F. App’x    332,

335-36    (10th    Cir.   2010).        We   therefore      conclude   that    the

district court did not err in applying the two-level enhancement

under USSG § 2G2.2(b)(3)(F) in this case. 3



interrogatory to his case nor contends that 18 U.S.C. § 2252A
expressly prohibits application of the two-level enhancement
under USSG § 2G2.2(b)(3)(F).        We therefore reject these
references as bases for vacating Singo’s sentence.
      3Singo also devotes a portion of his brief to recounting:
conclusions   and  recommendations   made   by    the  Sentencing
Commission regarding the emphases placed by the sentencing
scheme set forth in USSG § 2G2.2, a summarily-made argument that
“the Guidelines” fail to “meaningfully distinguish” between
“non-contact offenders” like himself and others “who physically
exploit and do harm to children,” decisions by various other
Circuit and district courts rejecting § 2G2.2 and sentences
based thereon on policy grounds or as otherwise unreasonable, a
request that this court adopt these courts’ “skeptical view” of
USSG § 2G2.2, and a conclusion that these matters “demonstrate
the frustration that the advisory guideline provides for
sentencing in the child pornography area.”     Because Singo does
not explain how these matters support his claim of impermissible
double counting in the application of the enhancement under USSG
§ 2G2.2(b)(3)(F), we also reject them as bases for vacating his
sentence.


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     Accordingly, we affirm the criminal judgment.              We dispense

with oral argument because the facts and legal contentions are

adequately   presented   in   the   materials   before   this    court   and

argument would not aid the decisional process.

                                                                   AFFIRMED




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