                       RECOMMENDED FOR FULL-TEXT PUBLICATION
                           Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                   File Name: 14a0220p.06

               UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT
                                  _________________


                                               X
                          Plaintiff-Appellee, -
 UNITED STATES OF AMERICA,
                                                -
                                                -
                                                -
                                                    No. 13-2496
          v.
                                                ,
                                                 >
                                                -
                       Defendant-Appellant. -
 RONALD EUGENE MABEE,
                                                -
                                               N
                  Appeal from the United States District Court
             for the Western District of Michigan at Grand Rapids.
           No. 1:13-cr-00099-1—Robert Holmes Bell, District Judge.
                         Decided and Filed: September 3, 2014
  Before: GIBBONS and McKEAGUE, Circuit Judges; LAWSON,* District Judge.

                                   _________________

                                        COUNSEL
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.
                                   _________________

                                         OPINION
                                   _________________

        DAVID M. 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


        *
        The Honorable David M. Lawson, United States District Judge for the Eastern District of
Michigan, sitting by designation.


                                              1
No. 13-2496         United States v. Mabee                                          Page 2


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.

                                             I.

       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
No. 13-2496        United States v. Mabee                                           Page 3


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.
       ...
       COURT: Okay. Did you know what you were downloading?
       MABEE: I knew I was downloading after I saw the images, the video,
       yes.
       ...
       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.
       ...
       MABEE: It went into a file called Shared File and it was instantly
       available to be broadcast on the Internet.
       COURT: Did you know that was going to happen?
       MABEE: Yes.
       COURT: Would it have been possible for you to have downloaded it,
       printed it, and erased it from your computer?
       MABEE: I could have deleted it, yes.
No. 13-2496       United States v. Mabee                                             Page 4


       ...
       MABEE: [But] I left it on the computer.
       COURT: Why did you leave it on the computer? To see it, to be able to
       view it?
       MABEE: To see if I could — I viewed it, yes. I viewed it and I went on
       to other things and I left it on there. I left it on my computer. How long,
       I don’t remember, but I left it on the computer and it was available for
       others to download.
       COURT: Did you communicate with other people as to your having this
       file and that you had it available to them?
       MABEE: No, no one, sir, nothing.
       COURT: So this was just, as far as you were concerned, it was personal
       to you? It was on your own computer, right?
       MABEE: Yes.
       COURT: But it was available knowingly for other people to download
       and pull from your computer?
       MABEE: No, it was available for others. It was only me. Nobody else
       was involved. It was only me, and it was available online for other
       people to download.
       COURT: Understood. Had you ever done — had you ever loaded off
       from other people’s computers in a downloading capacity as you were
       making available to them?
       MABEE: I never downloaded — I only downloaded from this program.
       I didn’t download it from anybody else’s computer that I know of, no,
       just what was available through ARES.
       COURT: Did you have as a purpose building a library of these or was
       this just a random matter?
       MABEE: No, I didn’t have a purpose of building them. I — my curiosity
       grew and I looked for more to find out what was out there in the real
       world, and I did download them.

       In calculating the offense level, the PSR assigned a base offense level of 22. The
probation officer recommended the assessment of a five-level enhancement to Mabee’s
base offense level because:
No. 13-2496        United States v. Mabee                                          Page 5


       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.
       ...
       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.
       ...
       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.
No. 13-2496       United States v. Mabee                                             Page 6


       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:

       COURT: . . . This is the Court’s calculation. The Court believes that this
       more truly reflects this matter, as well as I understand, Mr. Tilton, that
       from your client’s perspective the reason your client got into distribution
       of it is in order to receive it, he had to agree that it was open for
       distribution. Correct?
       MR. TILTON: That’s correct, Your Honor.
       COURT: He didn’t send it to his best friend Tom and Jim and Harry, did
       he?
       MR. TILTON: No.
       COURT: This made it open file-sharing?
       MR. TILTON: Correct. It wasn’t individual trading, but it was open to
       other people at the same program.
       COURT: Right, right. Okay. Mr. Mabee, have you had an opportunity
       to discuss this presentence report with your attorney?
       MABEE: Yes, Your Honor, I have.
       COURT: And does that presentence report accurately reflect you, the
       circumstances of this matter, and in all other respects is it fair and
       accurate?
       MABEE: I believe it does, yes. Yes, sir.
       COURT: Okay. Are you satisfied with the representations here that are
       provided on your behalf by Mr. Tilton?
       MABEE: Oh, yes, yes.
       COURT: Very well. Okay. I have a 121 to 151 range. Is that right?
       MR. LEWIS: I agree, Your Honor.
       MR. TILTON: I agree, Your Honor.
No. 13-2496         United States v. Mabee                                         Page 7


       The attorneys addressed Mabee’s motion for a variance, and the district court
then sentenced Mabee to 121 months in prison, which was at the bottom of the new
range. At the end of the sentencing hearing, the district court asked if the parties had
“[a]ny legal objection to the sentence imposed not previously raised,” and the
defendant’s attorney answered “No.”

                                             II.

       Mabee acknowledges that he failed to object to the five-level trading
enhancement in the district court. Where the defendant “concedes that he failed to object
in the district court to [a sentencing] enhancement,” he forfeits his claim, and the
standard of review is plain error. United States v. Babcock, 753 F.3d 587, 590 (6th Cir.
2014). The government, however, insists that Mabee waived his claim of error by failing
to object at the sentencing hearing and by agreeing with the district court that in order
to receive child pornography, he had to consent that his own child pornography was
available for distribution.

       “Waiver is different from forfeiture. Whereas forfeiture is the failure to make the
timely assertion of a right, waiver is the ‘intentional relinquishment or abandonment of
a known right.’” United States v. Olano, 507 U.S. 725, 733 (1993) (quoting Johnson v.
Zerbst, 304 U.S. 458, 464 (1938)). A defendant’s failure to object to a sentencing error,
or even his acknowledgment that he has no objection, does not amount to a waiver of
that error. See United States v. Simmons, 587 F.3d 348, 374 (6th Cir. 2009) (explaining
that “[w]here the sentencing judge asks the parties [if they have any objections] but a
party fails to raise any objections ‘not previously raised,’ the defendant forfeits all
unpreserved claims and plain-error review applies on appeal”) (citing United States v.
Bostic, 371 F.3d 865, 872 (6th Cir. 2004); United States v. Vonner, 516 F.3d 382, 385-86
(6th Cir. 2008) (en banc)). However, where the defendant has “explicitly agreed” that
a particular guideline calculation or enhancement applies to his sentence, any challenge
to that enhancement on appeal is waived. United States v. Aparco-Centeno, 280 F.3d
1084, 1088 (6th Cir. 2002) (holding that objection to classification of two offenses as
No. 13-2496         United States v. Mabee                                            Page 8


aggravated felonies was waived because in his sentencing memorandum the defendant
“explicitly agreed that they qualified as such”).

        Mabee did not waive the issue of whether the trading enhancement applied to
him, because neither he nor his attorney ever explicitly admitted that it applied, and he
never knowingly relinquished his right to challenge the applicability of that
enhancement. Several aspects of the record confirm this. First, although Mabee’s
sentencing memorandum did not raise any objection to the section 2G2.2(b)(3)(B)
enhancement proposed in the PSR, it also cannot fairly be read as conceding or agreeing
that the enhancement did apply. In fact, Mabee contested the conclusion that he
intentionally or knowingly “traded” or “bartered” child pornography, when he asserted
that he “did not foresee the consequences of enabling the ‘share file’ feature when he
was installing the program,” and “did not enable the feature with the expectation that he
would benefit from it.” He also contended that he only “viewed child pornography in
his home,” and that he “did not trade images or videos,” “did not create images or
videos,” “did not pay to download child pornography,” and “did not engage in online
chats about children or child pornography.”

        Second, the section 2G2.2(b)(3)(B) enhancement never was discussed during the
district court’s colloquy with the attorneys regarding the calculation of the offense level,
and the district court’s revisions to that calculation. Instead, the district court made clear
that it was “only changing [paragraphs] 26 and 27,” which referred to other, distinct
enhancements. When the district court asked the attorneys to confirm that its math was
correct, counsels’ response was directed only to the question whether, after subtracting
the five points that the district court stated it was removing from the original proposed
total offense level of 37, a total offense level of 32 was the proper arithmetic result.
Although the defendant unquestionably failed to object to the trading enhancement
during the sentencing hearing, the discussions in no way constituted an explicit
agreement or representation by the defendant that the enhancement applied to him.

        Third, even if the factual representations that Mabee made at the plea and
sentencing hearings were sufficient to support the district court’s conclusion that the
No. 13-2496        United States v. Mabee                                           Page 9


trading enhancement was justified, those admissions were ambiguous at best, and
therefore did not demonstrate the sort of plain, positive concurrence with the district
court’s conclusions needed to establish a waiver or to invoke the principle of invited
error. Mabee’s attorney did concede that his “client got into distribution of [child
pornography because] in order to receive it, he had to agree that it was open for
distribution”; and when asked if the “presentence report accurately reflect[s] you, the
circumstances of this matter, and in all other respects is . . . fair and accurate,” Mabee
responded, “I believe it does, yes. Yes, sir.” However, when the district court asked if
Mabee sent child pornography to any “friends,” Mabee’s counsel replied, “No.”
Mabee’s attorney conceded that his use of the ARES program included “open file-
sharing,” but he followed up by asserting that the activity did not involve “individual
trading.”

       Fourth, during the plea colloquy, Mabee made a series of somewhat conflicting
remarks regarding his use of the ARES program, which taken together certainly indicate
that Mabee knew that the files he possessed were available for others, but which do not
clearly establish that he made the files available for the purpose of receiving other files
in return, or that he meant to engage in any active exchange of files.             Mabee
unquestionably conceded that he knew that files he downloaded “went into a file called
Shared File and [were] instantly available to be broadcast on the Internet,” but he also
stated that he did not “communicate with other people” as to the availability of the files,
“[n]obody else was involved,” and “as far as [he] was concerned, it was personal [to
him].” Mabee went on to explain that as far as he knew he “didn’t download from
anybody else’s computer,” and he claimed that he “didn’t have a purpose” when
collecting the files, but only downloaded them in order to view them on his own
computer.

       None of these admissions, taken either alone or together, is sufficient to establish
that Mabee “explicitly agreed” that the trading enhancement applied to him, and his
representations therefore do not establish that he waived his objection to the
enhancement.
No. 13-2496        United States v. Mabee                                         Page 10


        The government cites several of our cases in support of its argument that “[a]
defendant waives a known claim by ‘agree[ing] in open court with a judge’s proposed
course of conduct.’” United States v. Hall, 373 F. App’x 588, 592 (6th Cir. 2010). But
in those cases, the objecting party, unlike Mabee, each had made a plain, explicit
concession on the record addressing the precise issue later raised on appeal. See United
States v. Smith, 749 F.3d 465, 494 (6th Cir. 2014) (“The [district] court explicitly stated
that the defense could call Wheat, but that Wheat could not give expert testimony.
Defense counsel, in response, stated ‘I am 100 percent behind that.’”); United States v.
Chames, 376 F. App’x 578, 580 (6th Cir. 2010) (per curiam) (“Chames agreed at the
April 28, 2009 revocation hearing that, if he failed to successfully complete the treatment
program at Dismas House, he would be sentenced to ten months’ imprisonment.”); Hall,
373 F. App’x at 592 (defense counsel stated at the sentencing hearing: “I recognize my
client has the criminal history that he does, and I certainly understand that he’s a,
pursuant to statute, an armed career criminal.”); Aparco-Centeno, 280 F.3d at 1088
(“Not only did Aparco-Centeno not object to the district court’s consideration of the two
prior convictions as aggravated felonies under 8 U.S.C. § 1326, he explicitly agreed that
they qualified as such.”); United States v. Lujan, 41 F. App’x 799, 800 (6th Cir. 2002)
(per curiam) (“Lujan has waived his right to challenge the quantity of drugs attributed
to him by affirmatively agreeing to the drug quantity and base offense level of 32
assigned to him.”); United States v. Kincaide, 145 F.3d 771, 784 (6th Cir. 1998) (“[A]ll
parties agreed that Riley was not challenging the calculation in the PSR that between
five and fifteen kilograms of cocaine were attributed to Riley.”).

       The government also cites Lanham v. United States, 4 F. App’x 313, 315 (6th
Cir. 2001) (per curiam), in which the panel stated that a failure to object standing alone
constituted a waiver. However, the panel also held in the alternative that application of
the challenged enhancement survived plain error review. And if Lanham were read as
holding that a mere failure to object constitutes waiver, it would conflict with our later
published decisions in Bostic and Simmons, in which we held that an objection that the
defendant fails to raise at sentencing is forfeited, not waived. Simmons, 587 F.3d at 374
(explaining that“[w]here the sentencing judge asks the parties [the Bostic] question but
No. 13-2496        United States v. Mabee                                           Page 11


a party fails to raise any objections ‘not previously raised,’ the defendant forfeits all
unpreserved claims and plain-error review applies on appeal” (emphasis added)).

       Mabee did not waive the issue of whether the district court properly applied the
trading enhancement in U.S.S.G. § 2G2.2(b)(3)(B) to his offense level calculation.

                                            III.

       Because he did not object in the district court, to prevail on his substantive claim,
Mabee must show that (1) the application of the trading enhancement under section
2G2.2(b)(3)(B) was “error; (2) the error was clear or obvious rather than subject to
reasonable dispute; (3) it affected the defendant’s substantial rights, which in the
ordinary case means it affected the outcome of the district court proceedings; and (4) it
seriously affected the fairness, integrity or public reputation of judicial proceedings.”
United States v. Massey, 663 F.3d 852, 856 (6th Cir. 2011). We have “made clear that
‘[a] sentencing court commits procedural error by failing to calculate (or improperly
calculating) the Guidelines range,’” United States v. McCloud, 730 F.3d 600, 603 (6th
Cir. 2013) (quoting United States v. Rosenbaum, 585 F.3d 259, 266 (6th Cir. 2009)), and
“[f]ailure to apply the correct Guidelines range generally constitutes plain error,” ibid.
(citing United States v. Story, 503 F.3d 436, 441 (6th Cir. 2007)).

       Section 2G2.2(b)(3)(B) of the United States Sentencing Guidelines prescribes a
five-level enhancement to the child pornography offense level for “[d]istribution [of
child pornography] for the receipt, or expectation of receipt, of a thing of value, but not
for pecuniary gain.” The commentary to the guidelines explains that “‘Distribution’
means 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.” U.S.S.G. § 2G2.2 cmt. 1. The commentary continues:

       “Distribution for the receipt, or expectation of receipt, of a thing of value,
       but not for pecuniary gain” means any transaction, including bartering or
       other in-kind transaction, that is conducted for a thing of value, but not
       for profit. “Thing of value” means anything of valuable consideration.
       For example, in a case involving the bartering of child pornographic
       material, the “thing of value” is the child pornographic material received
No. 13-2496        United States v. Mabee                                       Page 12


       in exchange for other child pornographic material bartered in
       consideration for the material received.

U.S.S.G. § 2G2.2 cmt. 1.

       Sharing child pornography on a file-sharing program alone does not trigger the
trading enhancement. United States v. Binney, 562 F. App’x 376, 379 (6th Cir. 2014)
(citing United States v. McManus, 734 F.3d 315, 320, 321 (4th Cir. 2013); United States
v. Vadnais, 667 F.3d 1206, 1209 (11th Cir. 2012)); see also United States v. Emmons,
524 F. App’x 995, 999 (6th Cir. 2013) (observing that “[t]he [§ 2G2.2(b)(3)(B)]
enhancement does not apply merely because a defendant used a file-sharing program,
but extensive use of the program resulting in several hundred images will weigh in favor
of the enhancement”). “Instead, we examine whether there is evidence, ‘direct or
circumstantial,’ that [the defendant] ‘reasonably believed that he would receive
something of value by making his child pornography files available for distribution
through a peer-to-peer network.’” Binney, 562 F. App’x at 379 (citation omitted).

       In Binney, there was no direct evidence of quid pro quo sharing, such as recorded
conversations or chat logs. However, the defendant had collected an “astounding
number of images and videos found on his computer” which made his actions “among
the worst cases the district court had ever seen.” Id. at 380. In addition, Binney
subscribed to a file sharing program, had a list of other file sharers who shared
pornography with him, and made his own collection available to others. We found that
evidence to be sufficient circumstantial proof that Binney shared his child pornography
collection “with the expectation of receiving child pornography in return,” thereby
justifying the application of section 2G2.2(b)(3)(B). Ibid.

       The circumstantial evidence in this case is not compelling. Forensic analysis of
Mabee’s computer revealed that he possessed no more than 87 distinct child
pornography images and videos, far less than the “astounding number of images and
videos” recovered from the defendant’s computer in Binney. No evidence appears in the
record suggesting that Mabee maintained any “friends list” in the ARES program, and
Mabee asserted that he did not “communicate with other people” as to the availability
No. 13-2496        United States v. Mabee                                         Page 13


of the files, “[n]obody else was involved,” and “as far as [he was] concerned, it was
personal [to him].”

       However, the circumstantial evidence of bartering or trading is bolstered by one
crucial item: Mabee’s acknowledgment that he “got into distribution of [child
pornography because] in order to receive it, he had to agree that it was open for
distribution.” (Emphasis added). That acknowledgment permits an inference that Mabee
decided to distribute files with an “expectation of receipt,” because, by his admission,
he knew that if he did not make his own files available, he could not receive any files in
return from other file sharers.       The inference is arguably weak because the
acknowledgment by Mabee came through his attorney’s affirmative response to a
leading question posed by the court. Nevertheless, viewed as a whole, the evidence
satisfies us that the district court did not commit clear or obvious error when it
determined that Mabee engaged in the “[d]istribution [of child pornography] for the
receipt, or expectation of receipt, of a thing of value.” U.S.S.G. § 2G2.2(b)(3)(B). On
a less compelling set of facts, we similarly held that “it was not plain error to apply the
[trading] enhancement where [the defendant] joined a P2P network, allowing others
access to files on his computer in exchange for access to files on their computers,” and
where the defendant “admitted that he had used the P2P network to download and view
images of child pornography and to allow others to download similar images from his
computer.” United States v. Frazier, 547 F. App’x 729, 731, 736 (6th Cir. 2013).

                                            IV.

       The district court did not plainly err when it applied the five-level enhancement
described in U.S.S.G. § 2G2.2(b)(3)(B) to the defendant’s offense level. Therefore, the
defendant’s sentence is AFFIRMED.
