                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 13-4707


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

JACK STEVEN VANLAAR,

                Defendant - Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Catherine C. Eagles,
District Judge. (1:13-cr-00119-CCE-1)


Submitted:   July 29, 2014                 Decided:   August 4, 2014


Before SHEDD and THACKER, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


George E. Crump, III, LAW OFFICE OF GEORGE E. CRUMP, III,
Rockingham, North Carolina, for Appellant. Ripley Rand, United
States Attorney, Anand P. Ramaswamy, Assistant United States
Attorney, Greensboro, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

             Jack Steven Vanlaar pled guilty, pursuant to a written

plea     agreement,        to     distribution           of    child        pornography,     in

violation of 18 U.S.C. §§ 2252A(a)(2)(A), (b)(1) (2012).                                     He

received a 190-month sentence.                      On appeal, Vanlaar argues that

the district court erred in applying a five-level enhancement

for “distribution for the receipt, or expectation of receipt, of

a   thing    of     value,       but     not    for      pecuniary     gain”       under    U.S.

Sentencing Guidelines Manual § 2G2.2(b)(3)(B) (2012).                                  Finding

no error, we affirm the sentence.

             We      review        a     sentence        for     reasonableness,           first

ensuring      that       there     is     no    “significant          procedural       error,”

including improper calculation of the Guidelines range.                                Gall v.

United      States,       552     U.S.    38,       51    (2007).           When    evaluating

Guidelines calculations, 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         Guidelines        provide          multiple         categories       of

distribution enhancements under USSG § 2G2.2(b)(3).                                Among these

categories,        “distribution         for    the      receipt,      or    expectation      of

receipt,     of    a     thing     of    value,       but     not   for     pecuniary      gain”

qualifies          for       a      five-level            enhancement          under        USSG




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§ 2G2.2(b)(3)(B), 1 while distribution of child pornography that

is not in exchange for money or other things of value and that

is not to minors qualifies for a two-level enhancement under

USSG § 2G2.2(b)(3)(F). 2

            The     Guidelines      define   “distribution”           as   “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.        The   definition        “includes

posting material involving the sexual exploitation of a minor on

a website for public viewing.”            Id.      We have held that use of a

peer-to-peer       file-sharing      program       qualifies     as     distribution

under § (F).        United States v. Layton, 564 F.3d 330, 335 (4th

Cir. 2009).        We reasoned that, by creating and using a shared

folder     with    knowledge     that    others      could     access      the    child

pornography files within, “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).

            The Guidelines define “distribution for the receipt,

or expectation of receipt, of a thing of value, but not for

pecuniary    gain”    as     “any    transaction,      including       bartering       or

     1
         Hereafter referred to as “§ (B).”
     2
         Hereafter referred to as “§ (F).”



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other      in-kind       transaction      that    is   conducted     for    a    thing    of

value, but not for profit.”                      USSG § 2G2.2 cmt. n.1.             As an

example, the Guidelines explain that, “in a case involving the

bartering of child pornographic material, the ‘thing of value’

is   the    child    pornographic         material     received      in    exchange      for

other child pornographic material bartered in consideration for

the material received.”             Id.

              Vanlaar       does   not    dispute      that   he    distributed        child

pornography under USSG § 2G2.2(b)(3).                    He argues, however, that

his use of a file-sharing program should have subjected him only

to the two-level enhancement under § (F), not the five-level

enhancement under § (B), absent specific evidence in the record

demonstrating that he shared child pornography files for the

purpose      of    receiving       something      in   return.       Vanlaar’s         § (B)

enhancement was based on his use of GigaTribe: a “peer-to-peer”

file sharing system platform on which users or friends of each

other can download and/or share part or all of their files on

their computer depending on the choices they make.

              The    Government        submitted       evidence     in     the   form     of

GigaTribe         chat     logs    and     presented      the      testimony      of     the

investigating case agent and a computer forensics expert.                                 In

United States v. McManus, 734 F.3d 315 (4th Cir. 2013), the

court addressed the five-level enhancement challenged here.                              The

district court did not have the benefit of McManus when it made

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its sentencing decision as it was decided several weeks after

the district court sentenced Vanlaar.               We held in McManus that a

§ (B)     enhancement       requires         a     showing       of         “sufficient

individualized evidence of . . . intent to distribute . . .

pornographic materials in expectation of receipt of a thing of

value.”       Id.    at    322.        McManus      addressed         the     GigaTribe

peer-to-peer file-sharing network also at issue here.                             However,

in McManus, we concluded that there was insufficient evidence to

support the enhancement because the government relied on McManus

sharing    his   folders     only      and   did    not     present         any       actual

individualized      evidence      to   demonstrate        intent      to     distribute

pornographic materials in expectation of receipt of a thing of

value.    Id. at 322.

            We   suggested        in   McManus      what     evidence        might       be

sufficient to support the § B enhancement.                     The government may

demonstrate      individualized        intent      by   showing       that        a    user

“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.”                  Id. at 322.            We noted

that if users communicate with one another to gain access to

files, “then      the   Government      should     be   able    to    gather          actual

individualized evidence to satisfy the second element of § (B)



                                         5
by   seizing     defendants’      chat   logs        with   undercover     agents     and

other users.”       Id.

            The chat logs here demonstrate that Vanlaar shared his

password to his shared folders with the expectation that the

other GigaTribe user would reciprocate and provide a password so

that Vanlaar could view and download the other user’s files.

There are several sequences in the chat logs demonstrating that

Vanlaar intended to share with certain individuals only if he

would receive files in return.                  The way the GigaTribe system

works, as the district court noted, one user must first provide

a    password.      The    system   does       not    appear    to    be   set   up   for

simultaneous or enforced reciprocal sharing.                         It was Vanlaar’s

practice to ask for a password in return when he was the first

to share access.          The chat logs also demonstrate that he would

not provide his password to another user when the first user did

not have any files that he wanted to view.

            The facts in the record indicate that, at the very

least,    Vanlaar    had    the   expectation         that     in    distributing     his

child pornography files through GigaTribe that other users would

return the favor and supply him with access to their files as

well.     In light of this and in consideration of McManus, we

conclude that the district court did not clearly err in finding

that Vanlaar possessed the requisite expectation necessary for

applying the § (B) enhancement.

                                           6
           Accordingly,     we   affirm   Vanlaar’s       sentence.       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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