                              UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                              No. 14-4658


UNITED STATES OF AMERICA,

                 Plaintiff - Appellee,

          v.

JOHN D. HAYES,

                 Defendant - Appellant.



Appeal from the United States District Court for the Southern
District of West Virginia, at Huntington.  Robert C. Chambers,
Chief District Judge. (3:13-cr-00124-1)


Submitted:   April 30, 2015                   Decided:   May 22, 2015


Before SHEDD, FLOYD, and THACKER, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Brian J. Kornbrath, Acting Federal Public Defender, David R.
Bungard, Assistant Federal Public Defender, Jonathan D. Byrne,
Appellate Counsel, Charleston, West Virginia, for Appellant. R.
Booth Goodwin II, United States Attorney, Jennifer Rada Herrald,
Assistant United States Attorney, Charleston, West Virginia, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

       Following a bench trial, John D. Hayes was convicted of

attempted distribution and possession of child pornography, in

violation      of    18   U.S.C.    § 2252A(a)(2),        (5)(B)     (2012).        The

district court sentenced Hayes to 180 months in prison.                        Hayes

appeals   his       convictions    and   sentence.        Finding     no   error,    we

affirm.

       Hayes contends that the district court erred in rejecting

his guilty plea to possession of child pornography.                        “Before a

court may enter judgment on a plea of guilty, it must find a

sufficient factual basis to support the plea.”                     United States v.

Mitchell, 104 F.3d 649, 652 (4th Cir. 1997); see Fed. R. Crim.

P. 11(b)(3).          The factual basis requirement “ensures that the

court make clear exactly what a defendant admits to, and whether

those    admissions       are   factually       sufficient    to     constitute     the

alleged crime.”           United States v. DeFusco, 949 F.2d 114, 120

(4th    Cir.   1991).       “The    trial       court   has   wide    discretion     in

determining whether a factual basis exists,” United States v.

Morrow, 914 F.2d 608, 611 (4th Cir. 1990), and the court may

make    that   determination       “by   having     the   accused      describe     the

conduct that gave rise to the charge,” Santobello v. New York,

404 U.S. 257, 261 (1971).

       To prove possession of child pornography, the Government

must show that the defendant knowingly possessed images of child

                                            2
pornography.       18 U.S.C. § 2252A(a)(5).              An act is knowing if it

is   done   “voluntarily         and   intentionally         and    not    because       of

mistake or accident or other innocent reason.”                      United States v.

Shrader, 675 F.3d 300, 309 (4th Cir. 2012) (internal quotation

marks omitted).       “A possessor of child pornography videos need

not know that it is such at the time of download, so long as he

discovers that it is child pornography after the download and

decides to keep it anyway.”             United States v. Carani, 492 F.3d

867, 875 (7th Cir. 2007).

     In this case, the court exercised its discretion to reject

the guilty plea because it concluded that Hayes refused to admit

to the core conduct of the offense, thus raising questions about

the factual basis for the plea.                 In light of Hayes’ testimony at

the plea hearing and the “deference [that we must accord] to the

trial court’s decision as to how best to conduct the mandated

colloquy    with    the       defendant,”       DeFusco,   949     F.2d    at    116,     we

cannot conclude that the court erred in this respect.

     Hayes next asserts a Confrontation Clause challenge to the

admission     of   reports       indicating       that     he    was     sharing    child

pornography    over       a    peer-to-peer       network.         The    reports       were

generated automatically by a computer program, not by a person.

“Evidence     implicates         the   Confrontation            Clause    only     if    it

constitutes a testimonial statement—that is, a statement made

with a primary purpose of creating an out-of-court substitute

                                            3
for trial testimony.”               United States v. Reed, 780 F.3d 260, 269

(4th    Cir.     2015)       (internal       quotation          marks       omitted).        Data

generated by a machine, where the only source of the statement

is the machine printout and not a person, is not subject to the

Confrontation Clause.                United States v. Washington, 498 F.3d

225, 229-30 (4th Cir. 2007); see also United States v. Lamons,

532    F.3d    1251,        1264    (11th     Cir.          2008)    (statements        made     by

machines       and     not     by     humans          are     exempt      from     purview       of

Confrontation Clause).                We conclude that the admission of the

challenged reports did not violate the Confrontation Clause.

       Hayes     next       challenges       the       sufficiency          of   the    evidence

supporting       his    conviction          for       the    attempted       distribution        of

child pornography.             We review the sufficiency of the evidence

underlying a criminal conviction “by determining whether there

is substantial evidence in the record, when viewed in the light

most favorable to the government, to support the conviction.”

United    States       v.    Jaensch,       665       F.3d    83,    93     (4th    Cir.   2011)

(internal        quotation          marks     omitted).              In      evaluating         the

sufficiency of the evidence, we do not review the credibility of

the witnesses, and we assume that the factfinder resolved all

contradictions         in    the     testimony         in    favor     of    the    Government.

United States v. Foster, 507 F.3d 233, 245 (4th Cir. 2007).                                     We

will not overturn a verdict if “any rational trier of fact could

have     found    the       essential       elements          of    the     crime      beyond    a

                                                  4
reasonable doubt.”            United States v. Dinkins, 691 F.3d 358, 387

(4th Cir. 2012) (internal quotation marks and emphasis omitted).

       The evidence established that Hayes possessed substantial

knowledge      about      computers    and       knowingly   used     a    file-sharing

program that allowed others to access child pornography files

stored in his shared folder.                We conclude that the evidence was

sufficient         to     support      Hayes’       conviction        for     attempted

distribution.           See United States v. Collins, 642 F.3d 654, 656-

57 (8th Cir. 2011) (finding sufficient evidence of attempted

distribution       of    child   pornography        where    defendant      downloaded,

installed, and used file-sharing program and possessed knowledge

of computers); see also United States v. Dunn, 777 F.3d 1171,

1175       (10th    Cir.      2015)    (defendant’s          placement       of      child

pornography files into shared folder accessible to other users

was    sufficient        to   establish     distribution      even    without     active

transfer of possession to another user).

       Finally, Hayes claims that his sentence of 15 years was

unconstitutional          because     the    indictment      did     not    allege    the

existence of a prior conviction. ∗                   As Hayes acknowledges, his

claim is foreclosed by Supreme Court precedent as well as our

       ∗
       Hayes was previously convicted in                West Virginia of sexual
assault in the second degree, involving                 a minor, which subjects
him to a mandatory minimum sentence of                   15 years’ imprisonment
and a maximum possible sentence of 40                    years.  See 18 U.S.C.
§ 2252A(b)(1) (2012).



                                             5
own and is thus unavailing.              See Almendarez-Torres v. United

States, 523 U.S. 224, 233-36, 243-44 (1998); United States v.

Cheek,     415   F.3d    349,   351-54       (4th   Cir.       2005)    (reaffirming

continued validity of Almendarez-Torres following United States

v. Booker, 543 U.S. 220 (2005)).

     Accordingly, we affirm the district court’s judgment.                        We

dispense     with      oral   argument   because         the    facts    and   legal

contentions      are    adequately   presented      in    the    materials     before

this court and argument would not aid the decisional process.



                                                                            AFFIRMED




                                         6
