                                                                                 FILED
                                                                     United States Court of Appeals
                                       PUBLISH                               Tenth Circuit

                     UNITED STATES COURT OF APPEALS                        August 18, 2015

                                                                        Elisabeth A. Shumaker
                                  TENTH CIRCUIT                             Clerk of Court



 UNITED STATES OF AMERICA,

       Plaintiff - Appellee,

 v.                                                    No. 14-2103

 JUAN LORENZO BARELA, JR.,

       Defendant - Appellant.



                    Appeal from the United States District Court
                          for the District of New Mexico
                         (D.C. No. 2:11-CR-00114-RB-1)


Stephen P. McCue, Federal Public Defender, and André C. Poissant, Assistant Federal
Public Defender, Las Cruces, New Mexico for Defendant-Appellant.

Damon P. Martinez, United States Attorney, and James R.W. Braun, Assistant United
States Attorney, Albuquerque, New Mexico for Plaintiff-Appellee.

                        _________________________________

Before HARTZ, GORSUCH, and MORITZ, Circuit Judges.
                  ________________________________

MORITZ, Circuit Judge.
                     ________________________________

      After Juan Lorenzo Barela, Jr., pled guilty to one count of distributing child

pornography and one count of possessing child pornography, the district court imposed a
controlling sentence of 210 months’ imprisonment. That sentence arose in part from the

district court’s imposition of a five-level enhancement based on its finding that Barela

distributed child pornography “for the receipt, or expectation of receipt, of a thing of

value.” U.S.S.G. § 2G2.2(b)(3)(B). The district court also imposed special conditions on

Barela’s supervised release, including a restriction on possession of materials depicting or

describing “sexually explicit conduct.”

       Barela argues the district court’s application of the § 2G2.2(b)(3)(B) enhancement

is at odds with this court’s precedent in United States v. Geiner, 498 F.3d 1104 (10th Cir.

2007), which held the enhancement requires the government to prove something more

than that the defendant distributed child pornography through a peer-to-peer network. We

agree with Barela that Geiner is controlling and resolves this issue, and we remand to the

district court with directions to vacate Barela’s sentence and resentence him.

       Barela also generally challenges the special conditions of his supervised release

based on the district court’s failure to provide reasons for their imposition. And Barela

specifically challenges the condition prohibiting him from possessing materials depicting

or describing sexually explicit conduct, arguing that condition is unrelated to the

sentencing factors and violates his First Amendment rights. Based on our plain error

review, we conclude Barela fails to show that either potential error justifies vacating the

special conditions.

                                 FACTUAL BACKGROUND

       In 2007, the New Mexico State Police conducted a sting designed to find

individuals using peer-to-peer networks to share and view child pornography. That

                                              2
investigation led to execution of a search warrant on Barela’s computer, where officers

found hundreds of images of child pornography and dozens of child pornography videos.

Barela was indicted for and pled guilty to one count of distributing and attempting to

distribute a visual depiction of minors engaged in sexually explicit conduct and one count

of possessing and aiding and abetting the possession of a visual depiction of a minor

engaged in sexually explicit conduct.

       The presentencing report (“PSR”) recommended applying a five-level

enhancement based on Barela’s use of a peer-to-peer sharing network, LimeWire, to

distribute child pornography for the “receipt, or expectation of receipt, of a thing of

value, but not for pecuniary gain.” See U.S.S.G. § 2G2.2(b)(3)(B). The PSR also

recommended imposing the District of New Mexico’s standard special sex offender

conditions, including prohibitions on possessing materials describing or depicting

“sexually explicit conduct”; contacting any child; and loitering near places used primarily

by children.

       At the sentencing hearing, Barela urged the court to reject the § 2G2.2(b)(3)(B)

enhancement, contending the government had not demonstrated he distributed child

pornography expecting anything in return. Although the government presented no

testimony or substantive argument on the issue, the district court rejected Barela’s

argument without comment after the probation officer reiterated the PSR’s justification

for the enhancement—i.e., that because Barela shared his own child pornography files

through a peer-to-peer sharing network, he necessarily expected to receive a thing of

value in return.

                                              3
       The district court sentenced Barela to a controlling sentence of 210 months’

imprisonment and imposed the recommended special conditions of supervised release.

Barela appeals, challenging the § 2G2.2(b)(3)(B) enhancement and the special

conditions.

                                         DISCUSSION

I.     The district court erred in applying U.S.S.G. § 2G2.2(b)(3)(B) based on
       Barela’s mere participation in a peer-to-peer network.

       Barela argues the district court erred in applying U.S.S.G. § 2G2.2(b)(3)(B)’s five-

level enhancement, which penalizes “[d]istribution [of material involving the sexual

exploitation of a minor] for the receipt, or expectation of receipt, of a thing of value, but

not for pecuniary gain.” Instead, Barela insists, the district court should have applied a

two-level enhancement under U.S.S.G. § 2G2.2(b)(3)(F), which penalizes distribution of

such material when the defendant neither expected any gain nor distributed to a minor.

       Because Barela objected to the enhancement below, we review the district court’s

factual findings for clear error and any legal determinations de novo. See United States v.

Kristl, 437 F.3d 1050, 1054 (10th Cir. 2006).

       In advocating for imposition of U.S.S.G. § 2G2.2(b)(3)(F)’s two-level

enhancement, Barela appropriately concedes his use of a peer-to-peer sharing network

constituted “distribution” of child pornography. See United States v. Ray, 704 F.3d 1307,

1311-13 (10th Cir. 2013) (concluding that mere use of a peer-to-peer sharing network to

obtain child pornography—even without knowledge that distribution to others could

result from such use—constitutes distribution under U.S.S.G. § 2G2.2(b)(3)(F)). But


                                              4
Barela argues that by applying the five-level enhancement based on nothing more than

his participation in a peer-to-peer network, the district court ran afoul of this court’s

holding in United States v. Geiner, 498 F.3d 1104 (10th Cir. 2007), where the court held

that mere installation of file-sharing software or use of a file-sharing network to distribute

child pornography did not support the enhancement’s application. Because the

government failed to prove he used LimeWire expecting any gain, Barela argues it failed

to prove a fact necessary to impose the five-level enhancement—namely, that he

distributed “for the receipt, or [in] expectation of receipt” of another’s child pornography.

       The government admits that language in Geiner favors Barela’s position, but

argues the language is dicta that this panel need not and should not follow. Critically, the

government conceded in its brief and again at oral argument that if this court disagrees

with its characterization of Geiner’s relevant language as dicta, it must vacate Barela’s

sentence. With so much riding on Geiner, we necessarily examine it carefully.

       Geiner’s conviction for interstate transportation of child pornography and

possession of child pornography rested on his use of BearShare, peer-to-peer software

that increases the speed by which users can download others’ files if users share their

own files. Like Barela, Geiner argued against application of U.S.S.G. § 2G2.2(b)(3)(B)’s

five-level enhancement, suggesting he had not distributed child pornography in

“expectation” of receiving a thing of value. The district court rejected Geiner’s argument

and the court in Geiner affirmed application of the enhancement, reasoning that the

government proves “expectation” of a thing of value when a person “‘distributes child

pornography in anticipation of, or while reasonably believing in the possibility of, the

                                               5
receipt of a thing of value.’” 498 F.3d at 1110 (quoting United States v. Maneri, 353 F.3d

165, 169 (2d Cir. 2003)). The panel ultimately concluded the government demonstrated

Geiner distributed child pornography expecting a return because he “made his files

available to others on the network in anticipation of a faster downloading speed.” Id.

(emphasis in original).

       In reaching this conclusion, the court in Geiner considered and rejected the Eighth

Circuit’s interpretation of U.S.S.G. § 2G2.2(b)(3)(B) in United States v. Griffin, 482 F.3d

1008 (8th Cir. 2007). Specifically, the Geiner panel rejected Griffin’s conclusion that the

five-level enhancement “automatically applies ‘to a defendant who downloads and shares

child pornography files via an internet peer-to-peer file-sharing network.’” Geiner, 498

F.3d at 1111 (quoting Griffin, 482 F.3d at 1013).

       Returning to the case at hand, the government points out that in Geiner the

government proved more than just simple participation in a file-sharing network by

showing that the defendant shared files to obtain faster download speeds. Thus, the

government argues, Geiner’s language rejecting Griffin’s “automatic enhancement”

language was dicta because the Geiner court didn’t “need to decide whether a defendant

who shares files on a file-sharing network necessarily expects to receive a thing of value

in the form of access to other users’ files.” Aplee. Br. at 11-12.

       As the government notes, we have defined dicta as “statements and comments in

an opinion concerning some rule of law or legal proposition not necessarily involved nor

essential to determination of the case in hand.” See, e.g., Rorhbaugh v. Celotex Corp, 53

F.3d 1181, 1184 (10th Cir. 1995). At first blush, the government’s argument appears

                                              6
persuasive. But a careful review of Geiner reveals the flaws in the government’s

characterization of Geiner’s rejection of Griffin as dicta.

       The Geiner court, writing in 2007, pointed out that this circuit had “yet to interpret

the amended language” of U.S.S.G. § 2G2.2(b)(3)(B), which included the term

“expectation.” Thus, in reaching its decision, the court devoted considerable attention to

other circuits’ interpretation of that term following the 2000 amendments to U.S.S.G.

§ 2G2.2(b)(2).

       If the panel had simply noted other circuits’ approaches with no particular context,

the government’s characterization of the relevant language as dicta might hold more

sway. But instead, the court analyzed those approaches in the context of considering the

defendant’s primary argument against application of the enhancement. Specifically, after

discussing Geiner’s anticipation of a faster download speed but before deciding whether a

faster download speed was a “thing of value,” the court stated,

       Mr. Geiner acknowledges that he configured his software to permit the
       sharing of his files because he wanted to be able to download images at a
       faster speed. Nevertheless, he contends that he did not expect to receive a
       “thing of value” because he would have had access to the images he sought
       without allowing others to access his files. He argues that, because he
       could have downloaded the same images without allowing this access, he
       did not expect to receive a thing of value. In short, he argues that he did not
       expect to receive a benefit when he configured the software on his computer
       to allow for the distribution of files containing child pornography.

Geiner, 498 F.3d at 1110-11 (emphasis added).

       The Geiner court then analyzed the defendant’s argument, ultimately agreeing

with Geiner that the mere act of sharing child pornography on a peer-to-peer network is

insufficient to support the enhancement, but concluding the government proved that the

                                              7
defendant did more than just share child pornography. In doing so, the panel discussed

the Eighth Circuit’s analysis in Griffin and essentially characterized as overbroad

Griffin’s conclusion that “the [five-level] enhancement automatically applies” to a person

who uses a peer-to-peer network.1 The Geiner panel pointed out that although “file

sharing may be the purpose of these networks,” a “defendant who distributes child-

pornography files by sharing them on a file-sharing network does not necessarily do so in

exchange for similar files, particularly when the defendant understands that these files are

available even if he chooses not to share his own.” Id. at 1111. The court then held,

“Rather, whether a defendant distributes files containing child pornography for the

receipt, or expectation of receipt, of other files available on the network is a question of

fact properly resolved on a case-by-case basis by the sentencing court.” Id. (emphasis in

original).

       The court thus established a “base line” approach as to what is not enough to

establish an “expectation,” agreeing with Geiner that his distribution of child

pornography through a peer-to-peer network didn’t warrant the enhancement. The court

then proceeded to apply its “case-by-case” approach to the government’s contention that

Geiner had distributed child pornography expecting a thing of value in return because he


       1
        The Eighth Circuit has since criticized Geiner’s interpretation of Griffin as
holding the five-level enhancement applies whenever an individual uses a peer-to-peer
network. See United States v. Stults, 575 F.3d 834, 848-49 (8th Cir. 2009). In Stults, the
Eighth Circuit emphasized that Griffin’s discussion flowed from the defendant’s
admission in that case that he expected to receive child pornography when he used
Kazaa, another file sharing program. For our purposes, however, the Eighth Circuit’s
subsequent interpretation of Griffin is not relevant; rather, our concern is how this court
considered Griffin in reaching its ultimate holding.
                                              8
elected to share his files in return for faster downloading capabilities. Ultimately, the

court concluded this evidence warranted the enhancement. Id. at 1112.2

         Reviewed in context, it is apparent that Geiner’s rejection of Griffin’s perceived

holding was integral to and necessarily involved in Geiner’s ultimate resolution of the

issue. After all, if Geiner had concluded that mere use of a peer-to-peer sharing network

was sufficient to support the enhancement, it would have been unnecessary for the panel

to consider whether Geiner’s actions exceeded that baseline activity—proof of his mere

use would have sufficed to support the enhancement. That the Geiner panel ultimately

concluded the government proved more than mere use by establishing that Geiner

anticipated increased download speeds does not render the panel’s discussion of Griffin

dicta.

         Returning to the case before us, the government acknowledges that the district

court applied the enhancement based on nothing more than Barela’s use of LimeWire to

distribute child pornography. And the government concedes that if we elect to follow

Geiner, the district court clearly erred in applying the enhancement. Aplee Br. at 8 (“If

this court chooses to follow the Geiner panel’s dicta, then the district court’s


         2
          Notably, other circuits have agreed with Geiner that the “inherent reciprocity” of
peer-to-peer networks doesn’t warrant the enhancement’s application because some users
recognize that participation in the network does not necessarily require a person to share
files. See United States v. McManus,734 F.3d 315, 320-21 (4th Cir. 2013) (viewing
Geiner as rejecting the concept that the “inherent reciprocity” of sharing networks
justifies application of the five-level enhancement); United States v. Vadnais, 667 F.3d
1206, 1209-10 (11th Cir. 2012) (citing Geiner and determining that because sharing
networks allow individuals to download files without sharing, the enhancement is not
warranted merely because a person downloaded files and allowed others to download
from him).
                                               9
determination that Barela’s use of a peer-to-peer file-sharing program alone justifies the

enhancement was clearly erroneous.”). Having concluded that Geiner’s discussion was

not dicta, we hold the district court clearly erred in applying the enhancement and remand

to the district court with directions to vacate Barela’s sentence and resentence him.

II.    The district court erred in imposing the special sex offender conditions
       on Barela’s supervised release, but no error warrants vacating the
       conditions.

       Barela urges this court to vacate all of the special sex offender conditions imposed

on his supervised release because the district court failed to provide any reasons for

imposing them. Barela also argues we must vacate the condition prohibiting him from

viewing or possessing materials containing “sexually explicit conduct” because the

condition is unrelated to the statutory factors in 18 U.S.C. § 3553(a), involves a greater

deprivation of liberty than necessary, and violates the First Amendment.

       Because Barela failed to object to any of the special conditions, we review both

claims for plain error. See United States v. Burns, 775 F.3d 1221, 1223 (10th Cir. 2014)

(explaining reversal is warranted under plain error test when error is clear and obvious

under current law; affects substantial rights; and seriously affects the fairness, integrity or

public reputation of judicial proceedings). We conclude the district court erred by failing

to justify the special conditions but the error does not warrant vacating those conditions.

Similarly, Barela has not met his burden to prove the condition prohibiting possession of

materials depicting or describing sexually explicit conduct was clear or obvious and this

claim also fails.



                                              10
       A. The district court erred by failing to provide at least a generalized statement of
          the reasons for imposing special conditions but Barela has failed to prove that
          the error affected the proceeding.

       Regarding Barela’s first argument, the government concedes the district court

erred in failing to provide at least a generalized statement of its reasons for imposing the

District of New Mexico’s special sex offender conditions for supervised release. But

because Barela failed to make this argument below, the government points out that we

must review this assertion for plain error and argues that Barela fails to show the error

justifies vacating the conditions.

       Under plain error review, we may vacate special conditions of supervised release

only if the record reveals no basis for the conditions. If the record reveals a basis, there is

no reasonable probability that but for the error the defendant’s sentence would be

different and thus the proceeding’s fairness was not impacted. See United States v.

Kieffer, 681 F.3d 1143, 1172 (10th Cir. 2012) (holding that when a district court fails to

provide reasons for imposing special conditions and the defendant fails to object, we

review for plain error); see also Burns, 775 F.3d at 1224-25 (concluding district court’s

failure to make requisite findings before imposing special condition affected defendant’s

substantial rights and undermined fairness, integrity, or reputation of proceedings

because, but for failure to address requirements, district court probably wouldn’t have

imposed special condition). Here, Barela’s discussion of the record is scant; he simply

claims in his initial brief that because he had “no history of violent crimes or sex offenses

against adults or children,” no “reasons [to impose the special condition] are discernible

from the record.” Aplt. Br. at 16. The government argues we should not consider “such a

                                              11
bare-bones argument.” Aplee. Br. at 18.

       Whether we refuse to consider Barela’s argument due to inadequate briefing or

consider its merits, we reach the same result. Broadly speaking, the conditions the district

court imposed impeded Barela’s access to children and required monitoring of his online

activities. We have reviewed the record and conclude that given the nature and scope of

the conduct underlying the offense, Barela’s history, and the results of his psychological

evaluation, the record supports the district court’s imposition of the conditions. See

United States v. Mike, 632 F.3d 686, 693 (10th Cir. 2011) (finding record supported

conditions due to result of psychological evaluations, nature of the offense, and

defendant’s failure to comply with registration requirements); see also United States v.

Martinez-Torres, No. 14-2081, __ F.3d __, Slip op. 15-18 (10th Cir. July 31, 2015)

(vacating condition prohibiting possessing material depicting or describing sexually

explicit conduct because district court failed to justify condition, the record contained no

evidence suggesting defendant viewed pornography, and sexually explicit materials did

not contribute to the defendant’s underlying offense). Accordingly, Barela has failed to

show the error affected either his substantial rights or the reputation or fairness of the

proceeding.

       B.     Barela has not demonstrated any “clear or obvious” error in prohibiting
              him from viewing or possessing any materials depicting or describing
              “sexually explicit conduct or pornography.”

       Next, Barela takes issue with the condition prohibiting him from “viewing or

possessing any material . . . depicting and/or describing sexually explicit conduct or



                                              12
pornography,”3 arguing the condition is not related to the relevant sentencing factors

listed in 18 U.S.C. § 3553(a), that it involves a greater deprivation of liberty than

necessary, and that it infringes on his First Amendment rights. Because Barela did not

object to this condition below, we again review for plain error. See Burns, 775 F.3d at

1223.

        Barela devotes substantial briefing to his assertion that the district court erred in

imposing this condition, but he fails to address the other three prongs of the plain error

standard. Seizing on this failure, the government argues United States v. Mike, 632 F.3d

686, 693 (10th Cir. 2011) controls our decision. In Mike, we applied plain error review to

similar arguments against a similar condition and concluded the error was neither clear

nor obvious. 632 F.3d at 700 (citing circuit split on issue of whether imposition of similar

condition is plain error).

        Barela fails to argue that the circuit split identified in Mike has dissipated.4 And

while the law has evolved since Mike, the split this court identified there persists.

Compare United States v. Medina, 779 F.3d 55, 61-64 (1st Cir. 2015) (concluding ban on

possessing “sexually simulating” material was plain error), United States v. Gnirke, 775

F.3d 1155, 1163-65 (9th Cir. 2015) (concluding ban on access to “sexually explicit

        3
         “Sexually explicit conduct” is defined as “actual or simulated” sexual
intercourse, bestiality, masturbation, sadistic or masochistic abuse, or “lascivious
exhibition of the genitals or pubic area of any person.” 18 U.S.C. § 2256(2)(A).
       4
         This panel recently held in Martinez-Torres, Slip op. at 18, that the district court
erred in imposing a similar special condition. But Martinez-Torres doesn’t aid Barela,
because in that case, the defendant objected to the condition. Reviewing for abuse of
discretion, we vacated the condition, concluding the record contained no evidence to
support the condition.

                                               13
material” constituted greater deprivation of liberty than necessary), and United States v.

Goodwin, 717 F.3d 511, 524-25 (7th Cir. 2013) (concluding that restriction on material

depicting or alluding to sexual activity was not reasonably related to the statutory

conditions and resulted in greater deprivation of liberty than necessary), with United

States v. Mefford, 711 F.3d 923, 927-28 (8th Cir. 2013) (finding no error in imposing a

condition banning pornography or erotica), and United States v. Zobel, 696 F.3d 558,

576-77 (6th Cir. 2012) (noting circuit split and determining ban on pornography and

sexually explicit materials was not error).

       Moreover, given Barela’s circumstances—i.e., his convictions for distributing and

possessing child pornography and his history of voracious pornography viewing—the

cases he cites are distinguishable and do not show that the error here was clear or

obvious. Cf. Mike, 632 F.3d at 700-01 (reasoning that, in addition to circuit split, error

was not plain given results of defendant’s background, psychosexual evaluations, mental

health assessments, and the “gruesomeness” of his prior sexual offense).

       Finally, although Mike did not address the condition’s potential First Amendment

implications, it is not “obvious or clear” that the conditions violated Barela’s

constitutional rights. See Zobel, 696 F.3d at 576-77 (finding similar condition did not

violate the First Amendment); see also Mefford, 711 F.3d at 927-28 (same).

                                       CONCLUSION

       We conclude the district court erred in imposing the five-level enhancement and

remand for resentencing. Finding no plain error in the district court’s imposition of the

special sex offender conditions for supervised release, we affirm those conditions.

                                              14
