     Case: 14-50272   Document: 00513023558     Page: 1    Date Filed: 04/28/2015




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                                   United States Court of Appeals
                                                                            Fifth Circuit

                                                                          FILED
                                 No. 14-50272                         April 28, 2015
                                                                     Lyle W. Cayce
UNITED STATES OF AMERICA,                                                 Clerk


                                                 Plaintiff - Appellee

v.

PETER ABRAHAM GROCE,

                                                 Defendant - Appellant




                Appeal from the United States District Court
                     for the Western District of Texas


Before JONES, BARKSDALE, and PRADO, Circuit Judges.
EDITH H. JONES, Circuit Judge:
      Peter Groce pleaded guilty to one count of receiving child pornography
in violation of 18 U.S.C. § 2252(a)(2). In calculating Groce’s guidelines range,
the district court applied enhancements for distributing child pornography for
the receipt of a non-pecuniary thing of value under U.S.S.G. § 2G2.2(b)(3)(B)
and engaging in a pattern of activity involving sexual abuse or exploitation of
a minor under U.S.S.G. § 2G2.2(b)(5). As calculated by the PSR, Groce’s
guidelines range was 360 months to life imprisonment. The district court
sentenced Groce to 240 months imprisonment—the statutory maximum.
      On appeal, Groce argues that the district court incorrectly applied the
distribution and pattern-of-activity enhancements.        He also contends his
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sentence is substantively unreasonable.       Because Groce’s arguments are
meritless and any error was harmless, we AFFIRM.
                               BACKGROUND
      The arguments Groce makes on appeal require briefly examining the
graphic details of his crime. On July 16, 2011, law enforcement in Converse,
Texas received information that Groce had exposed himself to two underage
girls while they were playing video games at his house. Groce then began
touching himself and asked the girls if they wanted to touch his genitals. A
few minutes later, Groce stood up while still exposed, approached the girls, and
began jumping up and down.
      When the police confronted Groce, he admitted that the incident had
occurred. Groce had been watching child pornography, when one of the girls
entered the room. Groce did not attempt to pull his pants up or cover himself.
Instead, he invited the child to touch his genitals, which she did momentarily
before backing away. Groce made similar advances on the second girl when
she entered the room a few minutes later. The second child, however, did not
touch Groce’s genitals.
      After Groce described these events, police confiscated his computer and
five CDs. A search of the electronic media revealed forty-three images and
twenty-three videos depicting adults engaging in sexual acts with minors.
Some of the minors depicted were as young as eighteen months old. The
computer also contained a peer-to-peer file sharing program called “Frostwire.”
Groce admitted that he often installed and uninstalled file sharing programs
like Frostwire to view child pornography. When asked about the program,
Groce said: “I was always careful not to allow anybody to download much off of
me. To be honest about it, it doesn’t have anything to do with my feelings of
distribution, it just has to do with I didn’t want to get caught.” Groce’s search
history further revealed that he actively sought child pornography. Groce
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explained that he would enter terms like “lolita,” and “pthc, which stands for
preteen hardcore,” into Frostwire or Google to find his desired content. In
addition to seeking child pornography, Groce also searched for information on
“how to convince girls to have sex” and “how they convince kids to have sex.”
      Nearly a year later, in May 2012, Converse police again received a report
that Groce had exposed himself to a minor. This time, Groce lured the eleven
year old victim behind a shed in his backyard. Groce then unzipped his pants,
exposed his genitals, and rubbed and squeezed them. Disturbingly, the child
indicated that similar incidents had occurred at least ten times in 2012, and
forty times in 2011.
    Converse police referred Groce’s case to federal prosecutors. A grand jury
indicted Groce on one count of receiving child pornography in violation of
18 U.S.C. § 2252(a)(2) and two counts of possessing child pornography in
violation of 18 U.S.C. § 2252(a)(4)(B). In exchange for dismissing the two
possession counts, Groce pleaded guilty to one count of receiving child
pornography. Groce’s guideline range, according to the PSR, was 360 months
to life imprisonment.    After hearing arguments on Groce’s objections, the
district court sentenced Groce to the statutory maximum of 240 months. Groce
now appeals his sentence.
                          STANDARD OF REVIEW
      This court reviews a sentencing decision for reasonableness using a two-
step process. Gall v. United States, 552 U.S. 38, 51, 128 S. Ct. 586, 597 (2007).
First, the court determines whether the district court committed any
significant procedural error. Id. Under the first step, this court reviews “the
district court’s interpretation or application of the sentencing guidelines de
novo, and its factual findings for clear error.” United States v. Scott, 654 F.3d
552, 555 (5th Cir. 2011). If there is no procedural error or the error is harmless,
this court then reviews the substantive reasonableness of the sentence imposed
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for abuse of discretion. United States v. Delgado-Martinez, 564 F.3d 750, 754
(5th Cir. 2009); see also Gall, 552 U.S. at 51, 128 S. Ct. at 597.
                                  DISCUSSION
      Groce raises three major issues on appeal. First, Groce contends that
§ 2G2.2(b)(3)(B) does not apply because he never distributed the pornography
or expected something of value in return.            Second, Groce argues that
§ 2G2.2(b)(5) is inapplicable because he never abused or exploited children.
Finally, Groce complains that his sentence is substantively unreasonable. We
will discuss each contention.
                                         I.
      Groce first challenges the applicability of § 2G2.2(b)(3)(B). That section
imposes a five-level enhancement if the offense involved “[d]istribution 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).      This includes any “bartering or other in-kind
transaction, that is conducted for a thing of value, but not for profit.” Id. cmt.
n.1. The archetypal example involves the “bartering of child pornographic
material . . . in exchange for other child pornographic material[.]” Id. Groce
contends the enhancement does not apply because there is no evidence Groce
distributed any child pornography and Groce never expected anything in
return for sharing his files.
      Generally, when a defendant knowingly uses peer-to-peer file sharing
software, however, he engages in the kind of distribution contemplated by
§ 2G2.2(b)(3)(B). A peer-to-peer file sharing program “lets users exchange
digital files through a network of linked computers.”            United States v.
Richardson, 713 F.3d 232, 233 (5th Cir. 2013), cert. denied, 134 S. Ct. 230
(2013). By using this software as Groce has, the user agrees to distribute the
child pornography on his computer in exchange for additional child


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pornography.    This is precisely the kind of exchange contemplated by
§ 2G2.2(b)(3)(B).
      This conclusion is nothing new. Although this court has often held that
knowing use of peer-to-peer file sharing software triggers § 2G2.2(b)(3)(B), we
have not done so in a published opinion. See United States v. Flores, 540 F.
App’x 405, 405 (5th Cir. 2013) (unpublished) (applying § 2G2.2(b)(3)(B) because
“[t]he undisputed evidence shows that Flores had the necessary technological
understanding of the peer-to-peer file sharing software to use the software to
obtain images of child pornography”); United States v. Desadier, 495 F. App’x
501, 503 (5th Cir. 2012) (unpublished) (same); United States v. Onken, 440 F.
App’x 304, 305 (5th Cir. 2011) (unpublished) (same); United States v. Moore,
328 F. App’x 308, 309 (5th Cir. 2009) (unpublished) (applying § 2G2.2(b)(3)(B)
because “[w]here . . . the defendant uses file-sharing software to obtain images
of child pornography, there is a natural expectation that he will do his bit for
the relationship by sending or continuing to send his own images in return”)
(internal quotation marks omitted)).       Based on § 2G2.2(b)(3)(B) itself, its
accompanying comments, and these persuasive cases, we now formally adopt
this longstanding interpretation.
      Groce knowingly used Frostwire, a type of peer-to-peer file sharing
software, to download and distribute child pornography.         Groce admitted
installing and uninstalling peer-to-peer software numerous times. Groce was
familiar with search terms that return images of child pornography. Groce
knew that other users could download his files and that, by allowing users to
do so, he would be distributing child pornography. Finally, Groce admitted
that he “was always careful not to allow anybody to download much off of me,”
implying that he knowingly let some users download from him. The district




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court thus correctly concluded that Groce distributed child pornography in
exchange for a non-pecuniary thing value. 1
                                              II.
       Next, Groce challenges the application of § 2G2.2(b)(5), which imposes a
five-level enhancement if the defendant “engag[ed] in a pattern of activity
involving the sexual abuse or exploitation of a minor.” This enhancement does
not apply, according to Groce, because his conduct only involved exposure, “and
never involved contact of any kind.”                Therefore, Groce never abused or
exploited a minor within the meaning of § 2G2.2(b)(5).
       The guidelines define sexual abuse or exploitation of a minor as:
(A) conduct described in various federal statutes, (B) an offense under state
law that would violate the same federal statutes if the offense occurred in the
territorial jurisdiction of the United States, or (C) an attempt or conspiracy to
commit any of the offenses under (A) or (B). U.S.S.G. § 2G2.2 cmt. n.1. One of
the federal statutes referenced in subsection (A) is 18 U.S.C. § 2241, which
among other things prohibits knowingly engaging in a sexual act with a person
under the age of 12. 18 U.S.C. § 2241(c). Consequently, § 2G2.2(b)(5) applies
if Groce engaged or attempted to engage in a sexual act with a minor on two or
more occasions.
       Although Groce did not engage in a sexual act with a minor, the district
court found that in June 2011 and May 2012 Groce attempted to engage in


       1 On appeal, Groce also contends that he is entitled to a two-level decrease under
§ 2G2.2(b)(1). But § 2G2.2(b)(1) and § 2G2.2(b)(3) are opposite sides of the same coin. A
finding that (b)(3) applies requires finding that the defendant distributed child pornography.
See U.S.S.G. § 2G2.2(b)(3). On the other hand, a finding that (b)(1) applies requires the
opposite—a finding that the defendant did not distribute child pornography. See U.S.S.G.
§ 2G2.2(b)(1) (“If . . . the defendant's conduct was limited to the receipt or solicitation of
material involving the sexual exploitation of a minor . . . decrease by 2 levels”). Accordingly,
a finding that (b)(3) applies necessarily precludes a finding that (b)(1) applies. That the
district court here properly applied § 2G2.2(b)(3)(B) disposes of Groce’s claim that
§ 2G2.2(b)(1) applies.
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sexual acts with minors in the incidents described above. The court was also
aware of Groce’s longstanding interest in child pornography and in
investigating topics like “how to convince girls to have sex.”
       Whether all of the perverse conduct together amounted to a pattern of
activity involving the sexual abuse or exploitation of a minor under
§ 2G2.2(b)(5) is not entirely clear. We need not resolve the question, however,
because even were we to agree with Groce that the district court erroneously
applied § 2G2.2(b)(5), any error was harmless. 2 See United States v. Ibarra-
Luna, 628 F.3d 712, 713-14 (5th Cir. 2010) (holding that an error in the
calculation of the applicable Guidelines range is subject to harmless error
analysis). An erroneous guidelines range calculation is harmless if “(1) [ ] the
district court would have imposed the same sentence had it not made the error,
and (2) [ ] it would have done so for the same reasons it gave at the prior
sentencing.” Id. at 714.
       To satisfy these requirements, there must be “evidence in the record that
will convince [this court] that the district court had a particular sentence in
mind and would have imposed it, notwithstanding the error.”                       Id. at 718
(footnote and quotation marks omitted). That the actual sentence fell within
the properly calculated Guidelines range is relevant to the harmless-error
inquiry, but not dispositive. United States v. Harris, 597 F.3d 242, 261-62 (5th
Cir. 2010).      Whether the district court applied the maximum allowable
sentence is likewise relevant to the harmless-error inquiry. See United States



       2 Although the Government has not argued harmless error, “[t]his court can, in its
discretion, consider the harmless error [argument] sua sponte.” Jones v. Cain, 600 F.3d 527,
541 (5th Cir. 2010) (citing United States v. Vontsteen, 950 F.2d 1086, 1091-92 (5th Cir. 1992)).
As the following discussion will show, the district court resolved to sentence Groce to the
statutory maximum, notwithstanding the guidelines range, because of the “nastiness of this
crime.” There is no doubt that it would impose the same sentence on remand. Therefore, we
exercise our discretion to address the harmless error question sua sponte.

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v. Self, 461 F. App’x 375, 378-79 (5th Cir. 2012) (unpublished); United States
v. Jack, 352 F. App’x 919, 921 (5th Cir. 2009) (unpublished); 3 see also United
States v. Jones, 435 F.3d 541, 543 (5th Cir. 2006) (holding the fact that the
district court would have imposed the maximum sentence under either a
mandatory or advisory guideline scheme rendered any Booker error harmless).
      Both harmless error elements are met here. At Groce’s sentencing, the
district court asked what the guidelines range would be if it sustained all
Groce’s objections. The probation officer reported that, under Groce’s preferred
calculation, the guidelines range would be 33-60 months. The district court
then considered the probation officer’s calculation (360 months to life) and
Groce’s range (33-60 months) and said:
      [O]ut of an abundance of caution, if the appellate court should find
      that the objections should have been sustained, the Court finds
      that the guideline – the guidelines are advisory anyway. And given
      the nastiness of this crime, other than just the child pornography
      itself, which is bad enough -- but the Court is going to sentence,
      taking into account all of th[ese] particular considerations[.]

Later, the district court reiterated that “the Court is going to impose a sentence
because of the facts of this case,” not because of the sentencing guidelines
range.    The court found Groce’s case “unique” because it had never seen
someone convicted of receiving child pornography “act out” like Groce. Due to
these factors, the district court sentenced Groce to the statutory maximum.
The court’s imposition of the maximum allowable sentence also favors finding
any error was harmless, particularly because we have concluded that at least
one of the challenged enhancements was correctly applied. With only the
§ 2G2.2(3)(B) enhancement, Groce’s recommended guidelines range would be



      3 Although these cases are non-precedential, we find these cases persuasive. See
Ballard v. Burton, 444 F.3d 391, 401 & n.7 (5th Cir. 2006).

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235-240 months, and his 240-month sentence is within this potential
guidelines range. See Harris, 597 F.3d at 261-62.     Were the court given the
duty to resentence on remand, we have no doubt that it would impose the same
240-month sentence. Therefore, any conceivable error was harmless.
                                      III.
      Groce’s last argument is that his sentence is substantively unreasonable.
This court reviews the substantive reasonableness of a sentence for abuse of
discretion. Gall, 552 U.S. at 51, 128 S. Ct. at 597. “A discretionary sentence
imposed within a properly calculated guidelines range is presumptively
reasonable.” United States v. Campos-Maldonado, 531 F.3d 337, 338 (5th Cir.
2008) (internal citation omitted). “The presumption is rebutted only upon a
showing that the sentence does not account for a factor that should receive
significant weight, it gives significant weight to an irrelevant or improper
factor, or it represents a clear error of judgment in balancing sentencing
factors.” United States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009) (internal
citation omitted).
      Here, the district court carefully considered the circumstances of the
crime (including the number of photos and videos found, Groce’s prior conduct
with minors, the youth of the victims depicted, and the abusive nature of the
depictions); Groce’s attempts at reform while incarcerated pending sentencing;
his familial support network, remorse, and potential for rehabilitation; and the
danger to the public. It also reviewed the sentences imposed in other child
pornography cases, acknowledged that Groce himself had been sexually abused
as a child, and recognized the addictive nature of Groce’s conduct. As a result,
Groce has failed to show that his sentence “does not account for a factor that
should receive significant weight, [ ] gives significant weight to an irrelevant
or improper factor, or [ ] represents a clear error of judgment in balancing


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sentencing factors.” Cooks, 589 F.3d at 186. The district court did not abuse
its discretion.
      For these reasons, we AFFIRM the sentence.




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