                    Case: 12-11808         Date Filed: 10/22/2012   Page: 1 of 8

                                                                        [DO NOT PUBLISH]


                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT
                                    ________________________

                                            No. 12-11808
                                        Non-Argument Calendar
                                      ________________________

                               D.C. Docket No. 9:11-cr-80091-WJZ-1

UNITED STATES OF AMERICA,

llllllllllllllllllllllllllllllllllllllll                            Plaintiff - Appellee,

                                               versus

JASON P. BAILEY,

llllllllllllllllllllllllllllllllllllllll                            Defendant - Appellant.

                                     ________________________

                           Appeal from the United States District Court
                               for the Southern District of Florida
                                 ________________________
                                       (October 22, 2012)

Before BARKETT, WILSON and PRYOR, Circuit Judges.

PER CURIAM:

         Jason Bailey appeals his 210-month sentence, imposed at the low end of the

applicable guideline range, after he pled guilty to one count of distribution of child
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pornography in violation of 18 U.S.C. § 2252(a)(2). On appeal, Bailey argues that

the district court plainly erred when it applied a five-level enhancement to his

sentence, pursuant to U.S.S.G. §2G2.2(b)(3)(B), for distributing child

pornography in receipt, or expectation of receipt, of a thing of value. Finding no

plain error on the part of the district court, we affirm.

      We normally review district court findings of fact for clear error and review

the application of the Sentencing Guidelines de novo. United States v. Newman,

614 F.3d 1232, 1235 (11th Cir. 2010). However, when a defendant fails to raise a

particular argument in the district court below, we review the decision only for

plain error. See United States v. Moreno, 421 F.3d 1217, 1220 (11th Cir. 2005)

(per curiam). To establish plain error, the defendant must show: (1) 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.

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

enhancement where the defendant engages 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). This provision applies to “any transaction,

including bartering or other in-kind transaction, that is conducted for a thing of

value, but not for profit.” U.S.S.G. § 2G2.2(b)(3)(B), cmt. n.1. A “thing of value”

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is defined as “anything of valuable consideration,” and both the Sentencing

Guidelines and our case law have explicitly included the receipt of child

pornographic material in exchange for other child pornographic material as an

exchange for a “thing of value.” Id.; see also United States v. Bender, 290 F.3d

1279, 1286 (11th Cir. 2002) (holding that “when a defendant trades child

pornography for more child pornography, [he] has engaged in ‘distribution for the

receipt, or expectation of receipt, of a thing of value’”).

       Bailey contends that the district court plainly erred in applying the §

2G2.2(b)(3)(B) five-level enhancement, which he claims the district court based

solely on his use of the Gigatribe peer-to-peer file-sharing network. Bailey claims

that the record only shows that he intended to distribute child pornography,

warranting a two-level sentencing enhancement under § 2G2.2(b)(3)(F), but he

maintains that the record does not show what he expected or whether he expected

anything at all in exchange for sharing the pornographic material in his

possession.1

       Bailey relies heavily on our decision in United States v. Vadnais, 667 F.3d



       1
         Bailey also claims that there is no evidence that he solicited or downloaded the files that
the undercover agent, Detective Ramos, sent him. However, this is irrelevant to our analysis, as
a defendant need not actually receive child pornography; instead, merely expecting its receipt is
sufficient under the auspices of § 2G2.2(b)(3)(B).

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1206 (11th Cir. 2012), where we held that a defendant’s mere use of a peer-to-peer

file-sharing network to download child pornography does not, by itself, support

the application of the § 2G2.2(b)(3)(B) five-level enhancement. 667 F.3d at 1209.

Instead, the government must present “some other evidence, whether direct or

circumstantial, that a defendant reasonably believed that he would receive

something of value by making his child pornography files available for

distribution through a peer-to-peer network.” Id.

      However, this Court has also recognized that “[o]ne incentive to make child

pornography images available over the Internet via peer-to-peer file-sharing

software is to obtain other images of child pornography in return,” and that “even

without an explicit quid pro quo agreement with another distributer of child

pornography, a person may engage in such conduct with the reasonable

expectation of an exchange.” United States v. Cote, 11th Cir. 2011, __ F. App’x

__ (No. 10-13364, Nov. 1, 2011) (per curiam) (holding that the five-level

enhancement applied to a defendant who used the Gigatribe peer-to-peer file-

sharing program to download, post, and share child pornography; who knew how

to use the program to search for and download child pornography; who stored his

child pornography in a shared file available for download by other users; who

invited others to download his files; and who expressly asked the undercover

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officer whether the officer had files to share).

      Based on the evidence presented below, the district court did not plainly err

in applying the five-level sentence enhancement. The online communication

between Bailey and the undercover agent, Detective Ramos, as well as Bailey’s

protective file distribution habits, sufficiently link Bailey’s distribution of child

pornography with the expectation of receiving child pornography in return. After

Bailey initiated a private conversation with Detective Ramos, the detective asked

Bailey, “what do you like,” as well as whether Bailey preferred images of boys or

girls. It was only after Detective Ramos asked these questions, creating an

expectation that Detective Ramos would send Bailey child pornography to match

Bailey’s pornographic interests, that Bailey shared his password-protected child

pornography files and their respective passwords.

      Further, other portions of the record provide additional evidence to establish

Bailey’s expectation of an exchange of pornographic material: (1) defense

counsel’s statement during the sentencing hearing that Bailey received the child

pornography files by “swapping images with people on the internet”; (2) defense

counsel’s statement during the sentencing hearing that when sending child

pornography, Gigatribe users “send you what they have, you send what you have”;

and (3) the inclusion of a psychologist’s report in Bailey’s sentencing

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memorandum, highlighting Bailey’s admission that he “exchanged images of child

pornography with select individuals on a file sharing service (Gigatribe).”

Ultimately, Bailey’s conversation with Detective Ramos, in conjunction with the

other statements by defense counsel and by Bailey himself, constitute the direct

and circumstantial evidence necessary to show that Bailey “reasonably believed

that he would receive something of value by making his child pornography files

available for distribution.” Vadnais, 667 F.3d at 1209.

      Moreover, the issue before us in Vadnais was a rather narrow one: “whether

Vadnais’s use of peer-to-peer file-sharing software to obtain child pornography

files from other users in a manner that permitted other users to obtain child

pornography files from his shared folder supports the application of the five-level

enhancement of § 2G2.2(b)(3)(B).” 667 F.3d at 1208. Thus, we specifically

examined the district court’s holding and the government’s contention that

Vadnais’s failure to turn off the default file-sharing setting, which automatically

placed the downloaded child pornography files in a shared folder on his computer

and automatically made them available to other network users, was sufficient to

warrant the application of the five-level sentencing enhancement. While we

rejected this argument and ultimately reversed the district court’s ruling, the case

before us is distinguishable from the more passive, default-setting distribution at

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issue in Vadnais.2

       While the record suggests that there were indeed some files that Bailey

made available without password protection, as was the case in Vadnais, the

record before us does not end there: as mentioned above, Bailey explicitly

discussed his pornographic preferences with Detective Ramos before sharing the


       2
         Bailey attempts to analogize Gigatribe, the peer-to-peer file sharing program at issue
here, to LimeWire, the peer-to-peer file sharing program at issue in Vadnais. Baily claims that it
is immaterial that Gigatribe requires users to receive specific authorization to access another
user’s files. In Vadnais, we described the function of LimeWire as follows:
        LimeWire is a file-sharing program that utilizes “peer-to-peer” (“P2P”)
        technology. By employing P2P technology, LimeWire permits its users to share
        digital files via an Internet-based network known as the “Gnutella network.”
        LimeWire users can share almost all files stored on their computers with other
        LimeWire users. When a LimeWire user wishes to locate digital files available
        through the network, she enters search criteria into the search function on
        LimeWire’s user interface. LimeWire then scans the computers of other
        LimeWire users, to locate files that match the search criteria. The LimeWire user
        can download any files that LimeWire locates. When the user downloads a file,
        LimeWire transfers a digital copy of the file from the computer on which it is
        located to the LimeWire user’s computer.
667 F.3d at 1208 (quoting Arista Records LLC v. Lime Group LLC, 784 F. Supp. 2d 398,
410–11 (S.D.N.Y. 2011) (footnote omitted)). We also specifically found that the five-
level sentencing enhancement was “not supported by the ordinary operation of the
LimeWire file-sharing software,” id. at 1209, which allowed default “freeloading,” or
“obtaining files from others without any requirement of providing files in return.” Id. at
1210. Gigatribe’s network operation, on the other hand:
        [E]nables a user to create his own private network, which he controls. He can
        invite guests to join his network, and remove guests from his network at any time.
        He can also prevent other users from viewing his personal information without his
        permission. A user can also join the networks of other Gigatribe users, but only
        with the permission of the user who created the network. Users select specific
        folders on their computers they wish to share with other users in the network.
United States v. Ladeau, D. Mass. 2010, __ F. Supp. __, (No. 09-40021, Apr. 7, 2010);
see Cote, __ F. App’x at __ (“Defendant Cote sent Detective Ramos an online invitation
to join Cote’s private peer-to-peer network.”). Thus, the operational differences between
LimeWire and Gigatribe are very much relevant here.

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password-protected child pornography files. Although the files that Bailey made

available without password protection might only warrant a two-level

enhancement under § 2G2.2(b)(3)(F), as Bailey claims, the circumstances

surrounding the password-protected files that he shared with Detective Ramos are

sufficient to support the five-level enhancement. Thus, the aforementioned

evidence indicates that it was not plain error for the district court to find that

Bailey exchanged his files for a thing of value. Accordingly, we affirm.

      AFFIRMED.




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