                                                                   [DO NOT PUBLISH]

                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT
                                    ________________________               FILED
                                                                  U.S. COURT OF APPEALS
                                            No. 10-15682            ELEVENTH CIRCUIT
                                        Non-Argument Calendar           JUNE 17, 2011
                                      ________________________           JOHN LEY
                                                                          CLERK
                            D.C. Docket No. 1:10-cr-00018-SPM-AK-1

UNITED STATES OF AMERICA,

llllllllllllllllllllllllllllllllllllllll                                  Plaintiff-Appellee,

                                               versus

TERRY M. DUFRAN,

llllllllllllllllllllllllllllllllllllllll                            Defendant-Appellant.

                                     ________________________

                           Appeal from the United States District Court
                               for the Northern District of Florida
                                 ________________________

                                           (June 17, 2011)

Before BARKETT, MARCUS and FAY, Circuit Judges.

PER CURIAM:

         Terry DuFran appeals his sentence for receipt of child pornography, 18

U.S.C. § 2252A(a)(2)(A) and (b)(1). DuFran argues that the district court erred in
applying a two-level sentencing enhancement under U.S.S.G. § 2G2.2(b)(3)(F) for

distribution of child pornography. For the reasons set forth below, we affirm.

                                         I.

      According to the presentence investigation report, DuFran was arrested

following an investigation of peer-to-peer file sharing networks conducted by the

North Florida Internet Crimes Against Children Task Force. In November 2009, a

task force agent used specialized software to locate a computer offering to

distribute child pornography. The same IP address had been recorded offering

child pornography files for distribution between September 7, 2009, and February

3, 2010. The agent viewed one video and confirmed that it depicted child

pornography.

      Investigators eventually traced the IP address to DuFran’s residence. Law

enforcement officers executed a search warrant for the residence and recovered a

laptop computer that contained numerous images of child pornography. DuFran

admitted that the computer was his. He acknowledged that had installed a

file-sharing program, FrostWire, on his computer, and had used that program to

download images of child pornography. DuFran was aware that any images in the

FrostWire “share folder” could be accessed by other computers running that

program. He was surprised that the agents had found child pornography on the

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computer because it was his standard practice to “wipe” the child pornography

after he was finished viewing it.

      In calculating DuFran’s guideline range, the PSI imposed a two-level

enhancement under § 2G2.2(b)(3)(F) for distribution of child pornography

because DuFran had placed some of the contraband files on a file sharing network.

DuFran objected to that enhancement, arguing that the evidence was insufficient

to show that he intended to distribute child pornography. DuFran explained that

he removed the child pornography images that he downloaded from the FrostWire

program’s share folder because he did not want to make those files available to

others. He asserted that the mere presence of a file-sharing program on his

computer was not enough to support the application of a distribution enhancement

      The government responded that the evidence contradicted DuFran’s

assertion that he did not intend to distribute child pornography. The government

noted that DuFran had installed file sharing software on his computer and was

aware of how it worked. The government further observed that DuFran’s IP

address had been detected offering to distribute child pornography files between

September 2009 and February 2010.

      At the sentencing hearing, the district court overruled DuFran’s objection to

the distribution enhancement. The court observed that DuFran had used

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peer-to-peer file sharing software to download and distribute images of child

pornography. The court found by a preponderance of the evidence that DuFran

was aware that the file sharing software would allow him to share images with

other users. The district court sentenced DuFran to a term of 240 months’

imprisonment.

                                         II.

      We review the district court’s factual findings at sentencing for clear error,

and the district court’s application of the Sentencing Guidelines to those facts de

novo. United States v. Lopez-Garcia, 565 F.3d 1306, 1323 (11th Cir. 2009). The

guideline for child pornography offenses calls for a two-level sentencing

enhancement in cases where the defendant distributed child pornography.

U.S.S.G. § 2G2.2(b)(3)(F). The application notes 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.
      Accordingly, distribution includes posting material involving the
      sexual exploitation of a minor on a website for public viewing but
      does not include the mere solicitation of such material by a defendant.

U.S.S.G. § 2G2.2, comment. (n.1).

      DuFran does not dispute that making files available over a file sharing

network can constitute distribution, but he argues that the district court should not


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have applied a distribution enhancement in his case because he did not intend to

share the images of child pornography with others, and took an affirmative step to

avoid doing so by removing the images from his computer’s share folder. DuFran

relies most heavily on the Eighth Circuit’s decision in United States v. Durham,

618 F.3d 921 (8th Cir. 2010). In that case, a law enforcement officer discovered

that Durham’s IP address was offering to distribute child pornography files using

the LimeWire file sharing program. Id. at 923. Durham argued that he should not

have received a distribution enhancement because there was no evidence that he

intended to make the child pornography available to others. Id. at 924-25.

      Under the Eighth Circuit’s case law, a defendant’s intent to distribute could

be inferred from the fact that the defendant had made the images available through

a file sharing program, unless the defendant presented “concrete evidence of

ignorance.” Id. at 926-27 (citing United States v. Dodd, 598 F.3d 449 (8th Cir.

2010)). In other words, the defendant needed to come forward with some

evidence showing that he did not know that he was making the files available to

others. The Eighth Circuit concluded that Durham had presented such evidence in

his case. Durham, 618 F.3d at 931-32. Specifically, Durham’s brother had

testified that Durham had not installed the LimeWire program and was not

knowledgeable about the program. Id. at 928-29. Although Durham had utilized

                                         5
LimeWire to download child pornography, there was nothing in the record to

suggest that he was aware of the program’s uploading capabilities. Id. at 929-32.

Accordingly, the Eighth Circuit reversed Durham’s two-level distribution

enhancement. Id. at 932.

      This case is distinguishable from Durham because DuFran installed the

FrostWire program himself and was familiar with how it worked. Among other

things, DuFran was aware that any files in the program’s share folder could be

downloaded by other computers connected to the file sharing network. Although

DuFran explained that he normally deleted the files after viewing them, law

enforcement officers detected his computer offering child pornography over the

FrostWire network between September 7, 2009, and February 3, 2010. Thus, it

appears that DuFran did, at some point, make child pornography available for

distribution. Given DuFran’s knowledge of FrostWire’s file sharing capabilities,

it was reasonable for the district court to determine that he made the files available

intentionally. We conclude that the district court did not err by applying a

two-level enhancement under U.S.S.G. § 2G2.2(b)(3)(F).

      Accordingly, after review of the record and the parties’ briefs, we affirm

DuFran’s sentence.

      AFFIRMED.

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