                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 14a0261n.06

                                       Case No. 12-4201

                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT

                                                                                    FILED
                                                                                Apr 07, 2014
UNITED STATES OF AMERICA,                           )                      DEBORAH S. HUNT, Clerk
                                                    )
       Plaintiff-Appellee,                          )
                                                    )     ON APPEAL FROM THE UNITED
v.                                                  )     STATES DISTRICT COURT FOR
                                                    )     THE NORTHERN DISTRICT OF
RAYMOND M. BINNEY,                                  )     OHIO
                                                    )
       Defendant-Appellant.                         )
                                                    )
                                                    )


       BEFORE: KEITH, COOK, and KETHLEDGE, Circuit Judges.

       PER CURIAM. Following a guilty plea, Raymond Binney appeals his conviction and

180-month sentence for receiving and distributing child pornography.            See 18 U.S.C.

§ 2252(a)(2).   He argues that the district court erred by (1) accepting his unknowing and

involuntary guilty plea and (2) imposing a procedurally and substantively unreasonable sentence.

We affirm.


                                               I.


       Binney used the online file-sharing program Gigatribe to exchange child pornography,

and a private email account to distribute it. Online file sharing systems allow users to download
Case No. 12-4201, United States v. Binney


files from the shared folder of other users’ computers. See United States v. Sawyer, 786 F. Supp.

2d 1352, 1354 (N.D. Ohio 2011) (describing file-sharing systems). As a “closed” file-sharing

network, “Gigatribe allows users to share files with other users with whom they have become

‘friends’ through an invitation and acceptance feature of the program.”            United States v.

McManus, 734 F.3d 315, 317 (4th Cir. 2013). “A user is not able to see or access another user’s

files unless: 1) one user has invited the other and the other has accepted the invitation; and 2) the

other user maintains a shared folder, accessible to friends, that is populated by files.” Id. In May

2010, an undercover federal agent discovered child pornography in Binney’s Gigatribe

directories, apparently after Binney added the agent as a friend and maintained a shared folder

accessible to the agent. Authorities later searched Binney’s apartment and computer and found

approximately 28,000 illegal images and 9,970 illegal videos. The search also revealed several

incriminating how-to documents, including one that listed Gigatribe user names “believed” to be

“actively trading child pornography.” (See PSR ¶ 19.)


       After indictment, Binney notified the district court of his intent to plead guilty. At the

plea hearing, the district court asked Binney a series of questions before determining that he

knowingly and voluntarily entered his guilty plea.


       A probation officer then filed a presentence investigation report (PSR) calculating

Binney’s Sentencing Guidelines range with a five-level enhancement because Binney distributed

child pornography “for the receipt, or the expectation of receipt, of a thing of value but not for

pecuniary gain.” U.S.S.G. § 2G2.2(b)(3)(B). Binney objected to the enhancement, but the

probation officer explained in an addendum to the PSR that “the defendant admitted to receiving

and distributing child pornography” and this exchange “is the reason for the adjustment.”




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Case No. 12-4201, United States v. Binney


(Addendum to PSR at 23.) Binney’s total offense level of 37, combined with a Category I

criminal history, yielded a sentencing range of 210 to 240 months’ imprisonment.


       At sentencing, Binney offered no objection to the application of the enhancement, and the

court, without elaboration, adopted the PSR’s calculation, sentencing Binney to 180 months—30

fewer than his guideline calculation. Then, without asking the parties whether they had any

further objections to the sentence, as required by United States v. Bostic, 371 F.3d 865, 871 (6th

Cir. 2004), the court entered judgment. Binney’s unenhanced range would have been 121 to 151

months. See U.S.S.G. Sentencing Table. Binney appeals.


                                               II.


       Binney attacks the validity of his plea as entered without a full understanding of import

or consequences. See United States v. Gardner, 417 F.3d 541, 544 (6th Cir. 2005). Federal Rule

of Criminal Procedure 11 “requires that a district court verify that the defendant’s plea is

voluntary and that the defendant understands his or her applicable constitutional rights, the

nature of the crime charged, the consequences of the guilty plea, and the factual basis for

concluding that the defendant committed the crime charged.” United States v. Webb, 403 F.3d

373, 378−79 (6th Cir. 2012). We review the court’s compliance with Rule 11 for only plain

error where Binney raised no objection when entering his plea. See United States v. Vonn,

535 U.S. 55, 59 (2002). Under that plain-error standard, Binney must show that a clear or

obvious error “affected [his] substantial rights,” i.e., motivated him to plead guilty. See United

States v. Dominguez Benitez, 542 U.S. 74, 83 (2004); United States v. Olano, 507 U.S. 725,

734−35 (1993).




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Case No. 12-4201, United States v. Binney


       Plainly, the district court bypassed four of Rule 11’s dictates. The government concedes

that the court erred by not advising Binney of: 1) his right to maintain his not-guilty stance;

2) his right to testify and present evidence at trial; and 3) the court’s obligation to calculate and

consider the Sentencing Guidelines and statutory sentencing factors. See Fed. R. Crim. P.

11(b)(1)(B), (E), (M).    (Government’s Br. at 27.)       Moreover, though unmentioned by the

government, the district court failed to confirm the absence of any force, threats, or promises to

induce Binney’s plea. See Fed. R. Crim. P. 11(b)(2).


       Nevertheless, unable to show “a reasonable probability that, but for the error[s], he would

not have entered the plea,” Dominguez Benitez, 542 U.S. at 76, Binney demonstrates no

prejudice.   Binney “does not even contend that he would have gone to trial under any

circumstance. Absent any such argument, he simply cannot show a reasonable probability of a

different outcome.” United States v. Taylor, 627 F.3d 1012, 1019 (6th Cir. 2010).


       The record bolsters this conclusion. The district court notified him of his right to a trial,

implicitly informing him of his right to persist in his not-guilty plea, testify, and present

evidence. (See R. 32, Plea Tr. at 5.) Likewise, the court explained at sentencing (in response to

a request for clarification from Binney) that it must consider the Sentencing Guidelines and

statutory factors. (See R. 33, Sentencing Tr. at 3−4.) Apparently satisfied, Binney never moved

to withdraw his guilty plea. And he raises no claim that he faced any force, threat, or some sort

of promise that induced him to plead guilty.


       As for his two remaining challenges to the guilty plea—that the district court

inadequately explained the nature of the offense under Rule 11(b)(1)(G) and failed to establish a

factual basis per Rule 11(b)(3)—the arguments fail. Regarding the first, though Binney criticizes



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Case No. 12-4201, United States v. Binney


the district court’s recitation of the indictment as inadequate (see R. 32, Plea Tr. at 4), he ignores

the fuller description of the charges later in the hearing.        The judge asked Binney if he

“knowingly receive[d] . . . and distribute[d] in interstate and foreign commerce numerous

computer files which contained visual depictions of real minors engaged in sexually explicit

conduct,” and Binney answered “yes.” (Id. at 8.) This exchange evidences his grasp of the

charges he faced. See United States v. Syal, 963 F.2d 900, 905 (6th Cir. 1992) (requiring district

courts to express only “[s]ome rehearsal of the elements”).


        Regarding the plea’s factual basis, district courts can ensure a plea’s factual basis by

asking the defendant to admit to the “conduct—and mental state if necessary—that satisf[ies]

every element of the offense.” United States v. Tunning, 69 F.3d 107, 112 (6th Cir. 1995). Here,

in addition to Binney’s exchange with the court outlined above, he responded “[g]uilty” to the

question of “how do you plead” following the judge’s repeating the indictment charge. (R. 32,

Plea Tr. at 10.)


        Even if this court assumes arguendo that these exchanges were inadequate, a court can

establish a plea’s factual basis by “a statement on the record from the government prosecutors.”

Id. Binney’s judge asked the prosecutor whether he wanted “to lay out any more of the factual

predicate,” to which the prosecutor responded with details of Binney’s criminal conduct. (Id. at

9.) The prosecutor explained, for example, that a search of Binney’s computer revealed over

28,000 images and 9,970 videos of child pornography, including bestiality and bondage. (Id. at

9.) These facts alone amply support the proposition that the court established a factual basis for

the plea. We discern no reversible error and uphold the court’s acceptance of Binney’s guilty

plea.




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Case No. 12-4201, United States v. Binney


                                               III.


       Binney also appeals the sentence imposed. He correctly notes that, because the district

court neglected to ask the Bostic question, regardless of Binney’s failure to timely object, we

review his sentence for abuse of discretion rather than plain error. See United States v. Ross,

703 F.3d 856, 883–84 (6th Cir. 2012); Bostic, 371 F.3d at 872. We assess the procedural and

substantive reasonableness of his sentence, see Gall v. United States, 552 U.S. 38, 51 (2007),

reviewing the district court’s factual findings for clear error and legal conclusions de novo,

see United States v. Lalonde, 509 F.3d 750, 763 (6th Cir. 2007).


       Binney first contends that the district court procedurally erred by imposing a five-level

enhancement for his distributing child pornography “for the receipt, or the expectation of receipt,

of a thing of value but not for pecuniary gain.” U.S.S.G. § 2G2.2(b)(3)(B). In support of the

enhancement, the district court relied on its finding that Binney shared child pornography on the

Gigatribe file-sharing website with the expectation of receiving child pornography in return.

See generally id. § 2G2.2(b)(3)(B) cmt. n.1.


       Binney’s contention correctly highlights a distinction between distributing child

pornography and trading it for something of value.            Distribution warrants a two-level

enhancement,     see U.S.S.G.    § 2G2.2(b)(3)(F),    while   bartering   garners    five   levels,

see id. § 2G2.2(b)(3)(B). “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. § 2G2.2(b)(3)(B)

cmt. n.1.




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Case No. 12-4201, United States v. Binney


       That Binney shared child pornography on Gigatribe is not reason enough to find that he

did so with the expectation of receiving child pornography in return. See McManus, 734 F.3d at

321; United States v. Vadnais, 667 F.3d 1206, 1209 (11th Cir. 2012). Instead, we examine

whether there is evidence, “direct or circumstantial,” that he “reasonably believed that he would

receive something of value by making his child pornography files available for distribution

through a peer-to-peer network.” Id.


       Though this record lacks direct evidence (such as chat logs) that Binney shared child

pornography with the expectation of receiving it in return, circumstantial evidence supports the

sharing-with-expectation-of-receiving assessment by the sentencing court. First, it is undisputed

that Binney maintained a list of Gigatribe users willing to share child pornography—

circumstantial evidence that he expected to receive child pornography from at least some of the

users with whom he shared his own child pornography. True enough, the record does not

specifically show that Binney traded child pornography with anyone on that list; but that just

means the list is circumstantial rather than direct evidence.


       Moreover, that Binney gathered the astounding number of images and videos found on

his computer—making this among the worst cases the district court had ever seen—corroborates

the court’s finding that Binney expected to (and did) receive child pornography when he shared

his own.    See United States v. Emmons, 524 Fed. Appx. 995, 999 (6th Cir. 2013) (“The

[§ 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”). In short, the district court could reasonably view the following

factors as circumstantial evidence supporting the imposition of the five-level enhancement:

Binney’s status as a Gigatribe user, his possession of a list of “sharing” Gigatribe users, the


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Case No. 12-4201, United States v. Binney


extensive collection of child pornography that he made available to his Gigatribe “friends,” and

the collection of tens of thousands of child-pornography images and videos on Binney’s own

computer. In the absence of a showing that the district court clearly erred when it found that

Binney shared child pornography with the expectation of receiving child pornography in return,

we uphold the court’s application of § 2G2.2(b)(3)(B).


       Binney’s remaining arguments merit only brief discussion. He contends that the lack of

empirical support for the 5-level enhancement should have caused the court to depart more than

30 months below the guidelines, without offering any reasoned argument tied to the abuse-of-

discretion standard of review.     He also challenges the substantive reasonableness of his

presumed-reasonable, below-guidelines sentence because, according to him, the district judge

relied too heavily on the number and nature of pornographic images distributed. We reject the

challenge, especially noting the grievous nature of this case and its cache of images, viewed as

“one of the worst” by the sentencing judge. (R. 33, Sentencing Tr. at 15.)


       Finally, we decline to address the constitutional effectiveness of Binney’s trial counsel,

noting the appropriateness of adjudicating such claims with a more-developed record under

28 U.S.C. § 2255. See Massaro v. United States, 538 U.S. 500, 504–06 (2003).


                                               IV.


       We AFFIRM.




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