                               UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 09-4987


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

GREGORY DONALD BRUNNER,

                Defendant – Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Statesville.         Richard L.
Voorhees, District Judge. (5:08-cr-00016-RLV-DSC-1)


Submitted:   August 17, 2010                 Decided:   August 27, 2010


Before DUNCAN, DAVIS, and KEENAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Lawrence W. Hewitt, Justin N. Davis, GUTHRIE, DAVIS, HENDERSON &
STATON, P.L.L.C., Charlotte, North Carolina, for Appellant. Amy
Elizabeth Ray, Assistant United States Attorney, Asheville,
North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

             Gregory       Donald       Brunner      pled    guilty     to    transporting

computer     files        that    contained         visual     depictions          of    minors

engaging     in      sexually     explicit         conduct,     in    violation         of   18

U.S.C.A.     § 2252(a)(1),         (b)(1)      (West    2000     &    Supp.    2010),        and

possession      of    a    computer      and       computer    disks    that        contained

numerous images of minors engaging in sexually explicit conduct,

in violation of 18 U.S.C.A. § 2252(a)(4)(B), (b)(2) (West 2000 &

Supp. 2010).         The district court sentenced Brunner to 151 months

of    imprisonment        and     Brunner      timely       appealed.         Counsel        for

Brunner filed a brief pursuant to Anders v. California, 386 U.S.

738 (1967), asserting that there are no meritorious grounds for

appeal, but questioning whether the district court abused its

discretion by imposing a two-level enhancement, pursuant to U.S.

Sentencing Guidelines Manual (“USSG”) § 2G2.2(b)(3)(F) (2008),

when   the   parties        did   not    stipulate      to     that    specific         offense

characteristic in the plea agreement.                         Brunner did not file a

pro se supplemental brief, although informed of his right to do

so.    The Government elected not to file an answering brief.

             We review a sentence for reasonableness, applying an

abuse of discretion standard.                  Gall v. United States, 552 U.S.

38, 51 (2007); United States v. Evans, 526 F.3d 155, 161 (4th

Cir.   2008).        This    review      requires      consideration          of    both     the

procedural and substantive reasonableness of a sentence.                                   Id.;

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see United States v. Lynn, 592 F.3d 572, 575 (4th Cir. 2010).

To    determine     “whether      a    district      court      properly         applied    the

advisory     Guidelines,        including         application        of    any    sentencing

enhancements, we review the district court's legal conclusions

de    novo   and    its    factual     findings         for   clear       error.”     United

States v. Layton, 564 F.3d 330, 334 (4th Cir.), cert. denied,

130 S. Ct. 290 (2009).

             Here,     the      plea    agreement        specifically           acknowledged

that enhancements beyond those enumerated in the plea agreement

could be assessed, stating: “These stipulations do not affect

either party’s right to argue in favor of, or against, [USSG §]

2G2.2 enhancements and/or reductions not listed above.”                                   Thus,

the     Government        was   entitled      to        argue   in        support    of     the

enhancement Brunner now challenges.

             Moreover, the district court correctly determined that

the challenged enhancement was warranted.                       In Layton, this court

explained that “[t]he term ‘distribution’ is broadly defined as

‘any    act,      including      possession         with      intent       to    distribute,

production,        advertisement,       and   transportation,              related    to    the

transfer     of    material      involving        the    sexual      exploitation         of   a

minor.’”       Layton, 564 F.3d at 335 (quoting USSG § 2G2.2 cmt.

n.1).    Thus, this court joined the Seventh, Eighth, and Eleventh

Circuits in holding that where ― as here ― a defendant knowingly

uses a peer-to-peer file-sharing program that allows others to

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access    child     pornography     files,       that    action       warrants      an

enhancement pursuant to USSG § 2G2.2(b)(3)(F).                    Id.      Like the

defendant      in   Layton,   Brunner     knowingly      used    a    file-sharing

program   to    find   and    exchange       contraband.        Accordingly,       the

district court properly assessed the two-level enhancement.

            Having reviewed the record in this case and finding no

meritorious issues for review, we affirm the district court’s

judgment.      This court requires that counsel inform Brunner in

writing of his right to petition the Supreme Court of the United

States for further review.         If Brunner requests that a petition

be filed, but counsel believes that such a petition would be

frivolous,      then   counsel    may    move    this    court       for   leave    to

withdraw from representation.            Counsel’s motion must state that

a copy thereof was served on Brunner.                   We dispense with oral

argument because the facts and legal contentions are adequately

presented in the materials before the court and argument would

not aid the decisional process.

                                                                            AFFIRMED




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