                    Case: 12-12854         Date Filed: 02/04/2013   Page: 1 of 5

                                                                        [DO NOT PUBLISH]



                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT
                                    ________________________

                                            No. 12-12854
                                        Non-Argument Calendar
                                      ________________________

                           D.C. Docket No. 6:11-cr-00216-RBD-KRS-1



UNITED STATES OF AMERICA,

llllllllllllllllllllllllllllllllllllllll                                   Plaintiff-Appellee,

                                                 versus

STEVEN WARING,

llllllllllllllllllllllllllllllllllllllll                                Defendant-Appellant.

                                     ________________________

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

                                           (February 4, 2013)

Before TJOFLAT, PRYOR and BLACK, Circuit Judges.

PER CURIAM:
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      Steven Waring appeals his 150-month sentence for 1 count of possession of

child pornography, in violation of 18 U.S.C. § 2552A(a)(2)(A) and (b)(1), and

1 count of distribution of child pornography, in violation of 18 U.S.C.

§ 2252A(a)(5)(B) and (b)(2). Waring argues the district court plainly erred by

applying a five-level sentencing enhancement for distribution of child

pornography for the receipt, or expectation of receipt, of a thing of value.

      When a defendant does not raise a particular argument below, we review

only for plain error. United States v. Moreno, 421 F.3d 1217, 1220 (11th Cir.

2005). To establish plain error, the defendant must show (1) an error, (2) that is

plain, (3) that affects substantial rights, and (4) that seriously affects the fairness,

integrity, or public reputation of judicial proceedings. Id. For an error to be

considered “plain” for purposes of plain-error review, “it is enough that the error

was plainly established under the law at the time of appellate review.” United

States v. Pantle, 637 F.3d 1172, 1175 (11th Cir. 2011).

      For an error to affect substantial rights, “in most cases it means that the error

must have been prejudicial: It must have affected the outcome of the district court

proceedings.” United States v. Olano, 113 S. Ct. 1770, 1778 (1993). “Where

errors could have cut either way and uncertainty exists, the burden is the decisive

factor in the third prong of the plain error test, and the burden is on the defendant.”

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United States v. Rodriguez, 398 F.3d 1291, 1300 (11th Cir. 2005). “The important

function of the third prong of the plain error test is to prevent a remand for

additional proceedings where the defendant, who failed to make a timely

objection, cannot show that there is a reasonable probability that a do-over would

more likely than not produce a different result.” Id. at 1302.

      Section 2G2.2(b)(3)(B) of the Sentencing Guidelines authorizes a five-level

enhancement when the defendant engaged in the distribution of child pornography

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

gain.” U.S.S.G. § 2G2.2(b)(3)(B). In early January 2012, following the

preparation of the PSI in this case, we issued two decisions explaining the proper

application of this enhancement. In United States v. Spriggs, 666 F.3d 1284,

1286–87 (11th Cir. 2012), the defendant downloaded child pornography using

Shareaza 2.0, a peer-to-peer file-sharing program, which had a default setting that

allowed others to download files from the defendant’s computer. We held the

enhancement was misapplied because there was no evidence the defendant and

“another user conditioned their decisions to share their illicit image collections on

a return promise to share files,” and noted that a mere “hope of receiving more

pornography” is insufficient to justify the enhancement. Id. at 1288. In United

States v. Vadnais, 667 F.3d 1206, 1207 (11th Cir. 2012), the defendant used

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LimeWire, a peer-to-peer file-sharing program, which also had a default setting

that automatically placed downloaded files into a shared files folder. We held the

enhancement was inapplicable because the defendant merely installed and used

LimeWire to download child pornography in a manner that permitted other users

to obtain his shared child pornography files. Id. at 1209. We stated “more must

be required for the five-level enhancement;” there must be direct or circumstantial

evidence that the defendant “reasonably believed” he would receive something of

value by making his child pornography files available for others to download. Id.

      Based on Spriggs and Vadnais, Waring can satisfy the first two prongs of

the plain error test. The record is devoid of facts that would justify application of

the § 2G2.2(b)(3)(B) enhancement, as there was no evidence Waring reasonably

believed he would receive something of value in exchange for making his child

pornography videos available for distribution through a peer-to-peer network.

Vadnais, 667 F.3d at 1209. Moreover, the error was plainly established at the time

of appellate review. Pantle, 637 F.3d at 1175. Waring cannot, however, meet his

burden of persuasion with regard to the third prong of the plain-error test.

Rodriguez, 398 F.3d at 1300. If Waring were to be resentenced, his guideline

range would be 151 to 188 months, instead of 210 to 262 months. He received a

sentence of 150 months, and there is no evidence suggesting the district court

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would have gone lower, especially in light of the court stressing the need for

deterrence, the alarming scope of the offense, and the impact of Waring’s crimes

on the child victims. Further, Waring received a 15-year supervised release term,

which is 3 times the statutory minimum. Accordingly, Waring “cannot show that

there is a reasonable probability that a do-over would more likely than not produce

a different result.” Id. at 1302.

      AFFIRMED.




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