           Case: 15-15668   Date Filed: 04/06/2018   Page: 1 of 5


                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 15-15668
                        Non-Argument Calendar
                      ________________________

               D.C. Docket No. 6:11-cr-00356-CEH-TBS-1



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                  versus

SHELDON JOEL RAMNARAINE,

                                                         Defendant-Appellant.

                      ________________________

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

                             (April 6, 2018)

Before WILLIAM PRYOR, MARTIN, and ANDERSON, Circuit Judges.

PER CURIAM:
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      Sheldon Joel Ramnaraine appeals from his 87-month sentence, imposed

after he pled guilty to possession and distribution of child pornography. He argues

the district court erred in applying 5-level enhancements under United States

Sentencing Guideline § 2G2.2(b)(3)(B) and (b)(7)(D). After careful consideration,

we affirm.

                                          I.

      Ramnaraine was charged with one count of possession of child pornography,

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

distribution of child pornography, in violation of 18 U.S.C. § 2252A(a)(2)(B) and

(b)(1). He pled guilty to both counts without a plea agreement. The presentence

investigation report (“PSR”) calculated Ramnaraine’s base offense level as 22. It

then applied a number of enhancements, including a 5-level enhancement under

Guideline § 2G2.2(b)(3)(B) and a 5-level enhancement under § 2G2.2(b)(7)(D).

Ramnaraine made a general objection to these enhancements at his sentencing, but

admitted that “if the United States Attorney called the FBI witness to testify,” the

district court would have no “legal basis” to reject the enhancements. He also did

not dispute the facts in the PSR. Based on the government’s factual proffer at

sentencing and the facts in the PSR, the district court overruled Ramnaraine’s

objection. The court granted a downward variance, however, and imposed an 87-

month sentence. This appeal followed.


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                                               II.

       We generally review a district court’s findings of fact for clear error and

review de novo its application of the guidelines. United States v. Gupta, 463 F.3d

1182, 1199 (11th Cir. 2006). “[A]bsent a stipulation or agreement between the

parties, an attorney’s factual assertions at a sentencing hearing do not constitute

evidence that a district court can rely on.” United States v. Washington, 714 F.3d

1358, 1361 (11th Cir. 2013).

       When a defendant raises a sentencing claim on appeal that he did not raise to

the district court, we review for plain error. United States v. Aguillard, 217 F.3d

1319, 1320 (11th Cir. 2000) (per curiam). “For this Court to correct plain error:

(1) there must be error; (2) the error must be plain; and (3) the error must affect

substantial rights.” Id. (quotation omitted). “If these conditions are met, we may

exercise our discretion to notice a forfeited error, but only if the error seriously

affects the fairness, integrity, or public reputation of judicial proceedings.” United

States v. Rodriguez, 751 F.3d 1244, 1257 (11th Cir. 2014) (quotation omitted).

       Under Guideline § 2G2.2(b)(3)(B), a 5-level enhancement applies if the

defendant distributed child pornography “for the receipt, or expectation of receipt,

of a thing of value, but not for pecuniary gain.” USSG § 2G2.2(b)(3)(B) (2011).1


       1
         “In reviewing the district court’s application of the Guidelines, this Court applies the
version of the guidelines in effect on the date of the sentencing hearing,” as well as any
clarifying amendments issued later. United States v. Jerchower, 631 F.3d 1181, 1184 (11th Cir.
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In the context of file-sharing programs, “the mere use of [such] a program . . . does

not, by itself, establish a transaction” that will support the enhancement. United

States v. Spriggs, 666 F.3d 1284, 1288 (11th Cir. 2012). Instead, the evidence

must show that the defendant’s sharing of child pornography with other users was

conditioned on something in return, such as a return promise to share. Id.

       Guideline § 2G2.2(b)(7)(D) imposes a 5-level enhancement if the offense

involved at least 600 images of child pornography. USSG § 2G2.2(b)(7)(D)

(2011); id. § 2G2.2 cmt. n.4(A). A video that contains child pornography is

equivalent to 75 images. Id. § 2G2.2 cmt. n.4(B)(ii).

                                            III.

       Although Ramnaraine objected to the enhancements under Guideline

§ 2G2.2(b)(3)(B) and (b)(7)(D) at sentencing, he did not make any legal argument

to the district court about why these enhancements should not apply. We thus

review for plain error only. See Aguillard, 217 F.3d at 1320. Also, because

Ramnaraine stipulated to the government’s factual proffer, we can rely on the

proffer to determine whether the district court plainly erred in applying these

enhancements. See Washington, 714 F.3d at 1361.




2011) (quotation omitted and alteration adopted). Although Guideline § 2G2.2(b)(3)(B) was
amended in 2016, Ramnaraine does not argue the amended Guideline should apply in his case
and indeed says it has “no application.” See USSG § 2G2.2(b)(3)(B) (2016). We thus apply the
2011 Guideline without deciding anything more.
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       We conclude the district court correctly applied both 5-level enhancements.

As to Guideline § 2G2.2(b)(3)(B), the PSR stated that Ramnaraine used Gigatribe,

a file-sharing program. At sentencing, the government proffered that Ramnaraine

admitted in his interviews with law enforcement that he used Gigatribe in order to

trade child pornography. The government also described a chat recovered from

Ramnaraine’s computer in which Ramnaraine told another user, “[E]ither you

share or I will ban you.” Together, this was sufficient evidence that Ramnaraine

conditioned his sharing of child pornography on a return promise to share. See

Spriggs, 666 F.3d at 1288. Thus, the district court did not err in applying the

5-level enhancement under Guideline § 2G2.2(b)(3)(B).

       As to Guideline § 2G2.2(b)(7)(D), the PSR stated that an undercover law-

enforcement officer downloaded “390 pictures and 3 videos of child pornography”

from Ramnaraine and that a forensic computer examiner later found “210 images

and 4 videos” on Ramnaraine’s electronic storage device. As each video is

considered to have 75 images, USSG § 2G2.2 cmt. n.4(B)(ii), Ramnaraine’s

offense involved 1,125 images, well over the 600-image minimum needed to apply

the 5-level enhancement. See id. § 2G2.2(b)(7)(D). Thus, there was no error by

the district court.

       AFFIRMED.




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