                                              PUBLISH

            IN THE UNITED STATES COURT OF APPEALS
                  FOR THE ELEVENTH CIRCUIT
                    ___________________________

                               No. 96-8855
                      ___________________________
                      D.C. Docket No. 1: 95-CR-253-1


     UNITED STATES OF AMERICA,

                                        Plaintiff-Appellant,

          versus

     TOM EVERETT,

                                        Defendant-Appellee.

                     ____________________________

                Appeal from the United States District Court
                   for the Northern District of Georgia
                    _____________________________

                            (November 25, 1997)

Before EDMONDSON and DUBINA, Circuit Judges, and LIMBAUGH*,
Senior District Judge.

_______________________________

*Honorable Stephen N. Limbaugh, Senior U. S. District Judge for the Eastern
District of Missouri, sitting by designation
PER CURIAM:

      The government assigns as error in this appeal the district court’s calculation
of the total offense level, the range of punishment and the ultimate sentence of
appellee. Using the 1995 guideline manual, the district court determined appellee's
total offense level to be 12, and his criminal history category to be I. The range of
punishment as to incarceration was therefore 10-16 months. Appellee received a
sentence of nine months incarceration followed by a term of supervised release for
three years, six months of which would be served by community confinement, plus
a $3,000 fine. Appellant challenges the two-level downward adjustment given
appellee by the trial judge in reaching the total offense level of 12 when appellee
was found to be a minor participant in the criminal activity in which he was
involved. U.S.S.G. § 3B1.2(b). We agree with appellant’s challenge and vacate
the sentence and remand for resentencing.
      Pursuant to a plea agreement, appellee entered a plea of guilty to count six of
a sixteen count indictment and the remaining counts were dismissed at sentencing.
Count six charged appellee with transporting child pornography in interstate
commerce in violation of 18 U.S.C. § 2252.
      The record discloses that computer bulletin board services (BBS) in Den-
mark were offered to users to disseminate child pornography. A BBS is an on-line
computer service that gives users access to computer files. Ordinarily, a user will
pay a fee to the BBS for access to its files. When a file is accessed, the user can
download, that is, transfer the file to the user’s computer. A user can upload a file
back to BBS or to some other user.
      Telephone lines and e-mail were also used to download files to users or for

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the user to upload his own files.
      Two of the Danish BBS’s had thousands of users, many of which were in the
United States. Appellee was a subscriber to these two Danish services since
November 1991. At the sentencing hearing, appellee insisted he never paid a fee to
the BBS and was only a user and not a subscriber.
      In any event, it is undisputed that appellee accessed the two Danish services
and downloaded child and other pornographic materials and then uploaded other
files back to the services and to other persons residing in Georgia and in other
states. In the process, he would encrypt some of the files so they were inaccessible
without having the necessary password to gain access.
      A search of appellee’s residence in implementing a warrant disclosed he had
possession of a substantial amount of pornography files, dozens of which depicted
child pornography. The record shows that on December 3, 1992 as alleged in
Count six of the indictment, one file depicting child pornography was uploaded by
appellee through another computer located in Redondo Beach, California by phone
line through interstate commerce.
      Numerous other persons in the United States were also prosecuted independ-
ently of appellee for engaging the BBS’s in Denmark to gain access to child
pornography and then upload it to others.
      On the basis of this evidence, the sentencing judge determined appellee was
a minor participant in the criminal activity and adjusted the base offense level
downward by two levels pursuant to U.S.S.G. § 3B1.2(b).




                                    DISCUSSION


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      We consider the district court’s determination of appellee’s role in the
offense as a factual finding, and thus review it for clear error. U.S. v. Fernandez,
92 F3d 1121, 1123 (11th Cir. 1996). U.S. v. Costales, 5 F3d 480, 483 (11th Cir.
1993).
      Appellee bears the burden of establishing the appropriateness of the down-
ward adjustment under U.S.S.G. § 3B1.2(b) by a preponderance of the evidence.
U.S. v. Gates, 967 F2d 497, 501 (11th Cir. 1992). He has not met this burden.
      There is no showing appellee and any BBS acted together as a group in any
concerted activity. Ordinarily, a BBS charges a fee for accessing the service, yet
even though appellee was able to access the service he stated he was only a user
and never paid a fee and was not a subscriber.
      Obviously, appellee was a substantial user and his relevant conduct involved
much more than his conduct with a BBS in Denmark. In the execution of the
search warrant over 200 files of child pornography were seized, yet only two child
pornography files were downloaded from the BBS.
      Appellee’s plea to count six was to the offense of transporting child pornog-
raphy in interstate commerce from Georgia to a computer in California. The
record is silent as to the origin of that material. Appellee has not offered evidence
to show it was one of the two files of child pornography that he downloaded from a
Denmark BBS.
      The evidence reveals appellee had been transmitting child pornography to
other users in Georgia and in other states. It is apparent he downloaded the child
files from other persons or places than the Denmark BBS as he had possession of
hundreds of child files, but only received two from Denmark.
      This court rejects appellee’s argument that he was simply one of a large


                                          4
network of people engaged in the exchange of child pornography through comput-
ers and therefore played a minuscule role in a grandiose pornography operation. If
this were the case the relevant conduct should include the entire activities of the
operation and appellee would be subject to an upward adjustment of five levels,
pursuant to U.S.S.G. § 5G2.2(b)(2). U.S. v. Holley, 82 F3d 1010, 1011, 1012
(11th Cir. 1996).
          In addition, he would be on the same standing as all the other thousands of
users and not “substantially less culpable than the average participant.” U.S.S.G. §
3B1.2, commentary-background.
          Appellee acted independently of the BBS. He elected when, and how to use
the service. He selected the material he used and when. He downloaded and
uploaded from and to other suppliers or users. He elected whether to engage in
child pornography or other types and whether to use the telephone, e-mail or other
means of transmission or reception. His contacts were in Georgia and in other
states.
          The BBS was not involved in appellee’s unlawful transmissions from
Georgia to California. There is no showing anyone involved in the service was
even aware of the California transaction or that files obtained from the service were
those transmitted. Other than the California receiver’s involvement, there is no
showing anyone but appellee was involved in the offense to which he pleaded
guilty. Certainly, there is nothing in the record to suggest appellee was any more
or less culpable than the California receiver. Accordingly, appellee is not entitled
to the downward adjustment. U.S. v. Costales, 5 F3d 480, 484, 485 (11th
Cir.1993).
          Appellee maintains that even if he is not entitled to a downward adjustment


                                             5
as a minor participant there should still be a role reduction by applying U.S.S.G. §
3B1.2 by analogy. He asserts the sentencing judge found that appellee was not
only entitled to an adjustment as a minor participant, but that there should be a role
reduction by analogy in any event. We do not believe the record supports the latter
assertion.
      To support his position, appellee relies on U.S. v. Bierly, 992 F2d 1061 (3d
Cir. 1990) cited in Costales, 5 F3d at 485. Both cases involve sting operations
conducted by undercover postal agents investigating dealing in child pornography
via the mails. In Bierly the court held that in “rare occurrences” a sentencing court
may depart downward applying U.S.S.G. § 3B1.2 by analogy. The case was
remanded to the sentencing court leaving it to that court to decide if the analogy
would apply when a government agent was involved.
      The court in Costales rejected a downward departure by analogy request
under U.S.S.G. § 3B1.2 as Costales was the only participant. Government agents
involved could not be considered as participants. The Costales court also rejected
the Bierly court’s analogic reasoning concept in the application of U.S.S.G. §
3B1.2.
      We also reject the analogic reasoning concept as to the facts in this case.
      The court in Costales referred to the commentary to § 3B1.2 that the mi-
nor/minimal role adjustment should be used infrequently and then observed
“departure by analogy should be granted even less often.” 5 F3d at 486.
      The record is devoid of any valid reason why there should be a downward
departure by analogy here. We have determined that no BBS was involved in
appellee’s unlawful transmission from Georgia to California. That transmission



                                          6
was simply between appellee and the California receiver and neither is more or less
culpable than the other.
      Unfortunately, child pornography transactions occur. The sentencing
commissioners are aware of this and provide for remedies. The facts of this case
are not so remarkable as to suggest a downward departure by analogy because of
an omission by the commission either in its rules or commentary. There is nothing
in this record to suggest there exists aggravating or mitigating circumstances of a
kind or to a degree not adequately taken into consideration by the Sentencing
Commission in formulating the guidelines. 18 U.S.C. § 3553(b).
      Although appellee did not appeal this case, in his brief he objected to the
trial court’s use of the 1995 sentencing guidelines and urged the use of the 1992
guidelines. This issue is moot as appellee did not appeal this determination and did
not raise the issue before the trial court. It may not now be raised for the first time.
Narey v. Dean, 32 F3d 1521, 1526, 1527 (11th Cir. 1994) (the exceptions to the
rule are not applicable here). U.S. v. Edmondson, 818 F2d 768, 769 (11th Cir.
1987); App. R 4(b). We find, in any event, the district court properly used the
1995 edition of the guidelines in assessing the sentence.
      Appellant’s final assignment of error is also moot because of our ruling on
the role in the offense issue. The district court found the base offense level to be
15 pursuant to U.S.S.G. § 2G2.2. Two levels were added following § 2G2.2(b)(1)
and two subtracted because of role in the offense, § 3B1.2(b), making a total at that
stage of 15. The trial court then subtracted 3 levels for acceptance of responsibil-
ity following § 3E1.1 thus arriving at the total offense level of 12.     A down-
ward adjustment for acceptance of responsibility by 3 levels may only be made



                                           7
when the offense level up to that point is 16 or greater; otherwise, it is only a 2
level adjustment, § 3E1.1.
      Here we have sustained the district court’s finding of a level 17 following §
2G2.2 and 2G2.2(b)(1). We have denied the downward adjustment of 2 levels
under § 3B1.2(b) so the level is 17 before considering an acceptance of responsi-
bility adjustment. Using a 17 level, it is clear appellee is entitled to a 3 level
downward adjustment following § 3E1.1. This calculation results in a total offense
level of 14. The criminal history category is I so the range of punishment for
incarceration is 15-21 months.
      We VACATE the sentence and REMAND for resentencing on the basis of a
total offense level of 14 and a criminal history category of I.




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