                                                                                FILED
                                                                    United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                        Tenth Circuit

                            FOR THE TENTH CIRCUIT                           April 9, 2019
                        _________________________________
                                                                        Elisabeth A. Shumaker
                                                                            Clerk of Court
 UNITED STATES OF AMERICA,

       Plaintiff - Appellee,

 v.                                                        No. 18-1061
                                                 (D.C. No. 1:16-CR-00078-RBJ-1)
 ELI TRAUFIELD,                                             (D. Colo.)

       Defendant - Appellant.
                      _________________________________

                            ORDER AND JUDGMENT*
                        _________________________________

Before McHUGH, BALDOCK, and KELLY, Circuit Judges.
                  _________________________________

      Eli Traufield appeals his sentence of 108 months in prison and ten years of

supervised release for possession of child pornography in violation of 18 U.S.C.

§ 2252A(a)(5)(B). Traufield disputes the procedural and substantive reasonableness

of his sentence and challenges several conditions of his supervised release. His

attorney has moved to withdraw and filed a brief pursuant to Anders v. California,

386 U.S. 738 (1967), stating there are no non-frivolous grounds to appeal. We agree,



      *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
and therefore, exercising jurisdiction under 28 U.S.C. § 1291, we grant counsel’s

motion to withdraw and dismiss this appeal.

                                           I

      A federal grand jury indicted Traufield on two counts of distributing child

pornography, 18 U.S.C. § 2252A(a)(2) and (b)(1), and one count of possession of

child pornography, id. § 2252A(a)(5)(B) and (b)(2). Traufield pleaded guilty to

count three in exchange for the government’s dismissal of counts one and two.1, 2

The initial presentence investigation report (PSR) determined Traufield possessed

1,638 images and 43 videos of child pornography on his computer, yielding a

sentencing range of 108 to 135 months in prison, with a 120-month statutory

maximum sentence. Traufield objected, arguing, among other things, that images

recovered from his computer’s “unallocated space” and/or “shadow copies” should

not be attributed to him as relevant conduct for sentencing purposes. R., Vol. 1 at

79-82. He also argued in a sentencing memo that the sentencing factors at 18 U.S.C.

§ 3553(a) warranted a below-Guidelines sentence of no more than 60 months in

prison. The government disagreed, arguing that the sentencing factors warranted the


      1
        Some of Traufield’s arguments challenge his conviction, but those arguments
are foreclosed by his guilty plea. See United States v. De Vaughn, 694 F.3d 1141,
1151 (10th Cir. 2012) (“‘A guilty plea is more than a confession which admits that
the accused did various acts. It is an admission that he committed the crime charged
against him.’” (quoting United States v. Broce, 488 U.S. 563, 570 (1989)).
      2
        As part of his plea agreement, Traufield executed an appeal waiver, which
the government previously moved to enforce. We denied the government’s motion
without prejudice, but the government has not renewed its motion; instead it agrees
with counsel’s assessment that there are no non-frivolous issues for appeal.
                                          2
statutory maximum sentence of 120 months in prison. A revised PSR rejected

Traufield’s objections relating to his sentencing calculation, maintained that the

applicable sentencing range was 108 to 120 months in prison, and recommended a

sentence of 108 months followed by ten years of supervised release.

       At sentencing, the district court heard expert testimony from FBI forensic

examiner James Stevens. Stevens explained that a file deleted from a computer will

result in “unallocated” space and can be restored with forensic software. R., Vol. 4

at 61, 101, 133. He distinguished this type of restored file from “shadow copies,”

which are back-up files automatically created by Windows operating systems at

specific points in time via a virtual shadow service (VSS). See id. at 62-65, 91,

134-35. He explained that these shadow copies enable a user to go back and view the

computer as it existed at certain dates and times simply by navigating through

Windows Explorer on the desktop if, for example, a user wants to retrieve an

accidentally deleted file.

       Stevens testified that using VSS, he was able to restore a file-sharing program

used by Traufield called GigaTribe. Id. at 91. He stated that once he restored the

program, he was able to access it as it appeared on certain dates. See id. at 92-93.

He selected July 29, 2013, which restored three GigaTribe subfolders containing 715

images and 18 videos3 of child pornography. Id. at 93-94, 99-100. Stevens

emphasized that this material was retrieved using VSS, it was not restored from the


       3
        Stevens later testified that he restored 25 videos depicting child pornography.
See R., Vol. 4 at 154-55.
                                           3
computer’s unallocated space, and it “could be accessed on [Traufield’s] computer on

that date by simply going down to . . . Windows Explorer, navigating down to the

folder, clicking, and the files would be listed, and you could open those files from

that location.” Id. at 154. Although Stevens could not confirm whether Traufield

actually viewed each file, id. at 158-59, he could tell through VSS that sometime

between July 29 and July 31, 2013, the material was deleted, and then, after July 31,

the material was emptied from the computer’s recycling bin, because he was able to

restore it from the computer’s unallocated space, id. at 100-01, 159-60.

       Additionally, Stevens testified that he recovered some 100 pages of chat logs,

which the district court admitted, between Traufield and other GigaTribe users. See

id. at 79, 82-83. He recounted one in which Traufield identified himself by the

screenname “nocosportsfan” to another user. Id. at 84-85. Traufield wrote, “Hello,

how’s it going? I’m new, just getting started. Want to trade?” Id. at 85. The other

user wrote back: “Sure,” and gave Traufield his password. Id. One minute later,

Traufield replied, “So hot, wow, you popped my cherry[.]” Id. Traufield indicated

he would give the other user access to his files, and he later gave him the password.

The other user replied, “Mmmh, good stuff.” Id. at 88. Traufield then wrote that he

was looking for a video depicting Colombian girls, whom he described as “super hot,

best body on the net.” Id. The other user responded, “Try to get it, when I see–when

I see, tell you.” Id.

       Stevens also testified that he personally viewed the material he recovered from

Traufield’s computer and confirmed that it depicted prepubescent children under the

                                           4
age of 12 engaging in child pornography. He stated, “There’s no question that there

[were] children of a very young age. There’s photos of babies, . . . with diapers or

onesies. And the onesies are unsnapped. The diapers are open. There’s definitely

pictures of small kids.” Id. at 156.

      The district court heard the parties’ arguments, overruled Traufield’s

objections, considered the § 3553(a) factors, and sentenced Traufield to 108 months

in prison. The court also imposed a term of ten years of supervised release, subject

to various special conditions. After Traufield appealed, his attorney moved to

withdraw and filed an Anders brief, asserting there are no non-frivolous issues for

appeal. As we have explained, Anders

      authorizes counsel to request permission to withdraw where counsel
      conscientiously examines a case and determines that any appeal would
      be wholly frivolous. Under Anders, counsel must submit a brief to the
      client and the appellate court indicating any potential appealable issues
      based on the record. The client may then choose to submit arguments to
      the court. The Court must then conduct a full examination of the record
      to determine whether defendant’s claims are wholly frivolous. If the
      court concludes after such examination that the appeal is frivolous, it
      may grant counsel’s motion to withdraw and may dismiss the appeal.

United States v. Kurtz, 819 F.3d 1230, 1233 (10th Cir. 2016) (internal quotation

marks omitted). Counsel identified four potential appellate issues relating to

sentence enhancements applied by the district court, although in counsel’s judgment,

these are frivolous issues. The government agrees. For his part, Traufield filed a

lengthy pro se response, reiterating some of the same arguments, challenging the

substantive reasonableness of his sentence, and contesting several conditions of his

supervised release.

                                           5
                                            II

      “We review a sentence for reasonableness under an abuse-of-discretion

standard.” United States v. Lente, 759 F.3d 1149, 1155 (10th Cir. 2014) (internal

quotation marks omitted). “A sentence is procedurally unreasonable if the district

court incorrectly calculates or fails to calculate the Guidelines sentence, treats the

Guidelines as mandatory, fails to consider the § 3553(a) factors, relies on clearly

erroneous facts, or inadequately explains the sentence.” Id. at 1156 (internal

quotation marks omitted). A sentence may be substantively unreasonable if the

district court places undue weight on certain § 3553(a) factors or fails to adequately

justify its sentence in light of the § 3553(a) factors. See id. But “[a] sentence is

substantively reasonable when it reflects the gravity of the crime and the § 3553(a)

factors as applied to the case.” United States v. Geiner, 498 F.3d 1104, 1107

(10th Cir. 2007) (internal quotation marks omitted). “[W]e accord a properly

calculated Guidelines sentence a presumption of substantive reasonableness.” Id.

      A. Procedural Reasonableness

      We begin with the four issues identified by counsel relating to the calculation

of Traufield’s sentencing range. In evaluating these issues, we review the district

court’s legal interpretation of the Guidelines de novo and its factual findings for clear

error. See United States v. Dalton, 409 F.3d 1247, 1251 (10th Cir. 2005). The

revised PSR determined the applicable base offense level was eighteen. See U.S.

Sentencing Guidelines Manual (USSG) § 2G2.2(a)(1) (U.S. Sentencing Comm’n



                                            6
2016).4 It added a two-level enhancement under USSG § 2G2.2(b)(2) because

material possessed by Traufield involved prepubescent minors who had not attained

the age of twelve; a five-level enhancement under § 2G2.2(b)(3)(B) because he

distributed child pornography in exchange for a thing of value, although not for

pecuniary gain; another five-level enhancement under § 2G2.2(b)(7)(D) because he

possessed more than 600 images; and a two-level enhancement under § 2G2.2(b)(6)

because his offense involved use of a computer. After subtracting three levels for

acceptance of responsibility, the revised PSR determined the total offense level was

29. Coupled with a criminal history of III, the revised PSR yielded a sentencing

range of 108 to 120 months, accounting for the ten-year statutory maximum sentence.

See USSG § 5G1.1(c)(1).

          1. USSG § 2G2.2(b)(2)—Prepubescent Minor Under 12 Years

      Under the Guidelines, this two-level enhancement applies “[i]f the material

involved a prepubescent minor or a minor who had not attained the age of 12 years.”

USSG § 2G2.2(b)(2). The district court applied the enhancement after viewing a

video identified as “Guatemalan 9-year-old Nena De La Calle,” which the court

determined “obviously is within the category of prepubescent and/or under . . . 12

years old.” R., Vol. 4 at 41. The government proffered other evidence as well,



      4
        The district court relied on the 2016 version of the Sentencing Guidelines for
the applicable enhancements. Although the revised PSR also referenced the 2013
version, it determined the offense level calculation using the 2016 version, which
yielded the same calculations, except for an additional four-level enhancement that it
did not apply.
                                          7
including Steven’s testimony that there were images involving babies and toddlers.

Against this evidence, Traufield offers only his bare assertion that the video viewed

by the district court was corrupt and the other material did not depict prepubescent

children or minors under the age of twelve. Under these circumstances, the factual

basis for applying this enhancement was satisfied.

          2. USSG § 2G2.2(b)(3)(B)—Exchange for Valuable Consideration

       This five-level enhancement applies “[i]f the defendant distributed [child

pornography] in exchange for any valuable consideration, but not for pecuniary

gain.” Id. § 2G2.2(b)(3)(B). According to the Application note, the phrase,

       “[t]he defendant distributed in exchange for any valuable consideration”
       means the defendant agreed to an exchange with another person under
       which the defendant knowingly distributed to that other person for the
       specific purpose of obtaining something of valuable consideration from
       that other person, such as other child pornographic material, preferential
       access to child pornographic material, or access to a child.

Id. cmt. n.1.

       Traufield contends that using a file-sharing program like GigaTribe, by itself,

is insufficient to establish that he distributed child pornography with the purpose of

exchanging it for a “thing of value,” in this case more child pornography, see Geiner,

498 F.3d at 1108 (recognizing that child pornography constitutes a “thing of value”

under the Guidelines); id. at 1110-12 (holding that use of file-sharing program,

without expectation of receiving a thing of value in return, is insufficient to apply the

enhancement). He says the district court should have instead enhanced his sentence




                                            8
only two levels under § 2G2.2(b)(3)(F), which applies if the material was not

distributed to a minor or with the expectation of receiving something of value.

      “In advocating for imposition of [USSG] § 2G2.2(b)(3)(F)’s two-level

enhancement, [Traufield] appropriately concedes his use of a peer-to-peer sharing

network constituted ‘distribution’ of child pornography.” United States v. Barela,

797 F.3d 1186, 1189 (10th Cir. 2015). In Barela, we vacated the defendant’s

sentence, recognizing that the “act of sharing child pornography on a peer-to-peer

network is insufficient to support the [§ 2G2.2(b)(3)(B)] enhancement.” Id. at 1191

& n.2 (citing Geiner, 498 F.3d at 1110-12). Traufield likens his case to Barela, but

the evidence here is quite different and establishes that he did more than use

GigaTribe solely to distribute child pornography; it establishes that he did so with the

express purpose of receiving more child pornography. He stipulated in his plea

agreement that his GigaTribe chat logs indicated he was “repeatedly telling others he

was starting his collection [of child pornography] over again and asking them to let

him have images and videos to help build his collection.” R., Vol. 1 at 57-58. He

also stipulated that he wrote, “I will be making good stuff available, won[’]t be a

mooch for long[.]” Id. at 58 n.4 (internal quotation marks omitted). The chat logs

described by Stevens also confirm that Traufield expressly asked, “Want to trade?”

Id., Vol. 4 at 85. Indeed, he exchanged passwords with another GigaTribe user, they

accessed each other’s files, they confirmed their access with their written responses,

and Traufield asked the other user to look out for a specific video depicting

Colombian girls. The evidence supports application of the five-level enhancement.

                                           9
          3. USSG § 2G2.2(b)(7)(D)—More than 600 Images

      Traufield claims this five-level enhancement should not apply because, as

stipulated in his plea agreement, he possessed only two videos, which are assessed a

total value of 150 images. See id. § 2G2.2 cmt. n.6(B)(ii) (“Each video . . . shall be

considered to have 75 images.”). Citing non-binding decisions from other circuits,

he contends that files recovered from unallocated space should not be counted against

him. This argument is frivolous, however, because the district court did not rely on

any images recovered from unallocated space in finding that Traufield possessed

more than 600 images.

      Traufield also asserts the court erred in relying on shadow copies under United

States v. Dobbs, 629 F.3d 1199, 1201-02 (10th Cir. 2011), where files containing

child pornography were automatically downloaded by the defendant’s web browser to

his computer cache but “there was no evidence [the defendant] had accessed his

computer’s cache, or that he even knew it existed.” Given the absence of evidence

that the defendant received the images knowingly, a majority of the panel reversed

his conviction for knowingly receiving child pornography. Id. at 1204. Here,

however, the evidence does not indicate the files were automatically downloaded to

Traufield’s computer. Rather, the evidence establishes that Traufield affirmatively

reached out to other users of GigaTribe seeking child pornography. Stevens testified

that he recovered some 100 pages of chat logs where Traufield asked other GigaTribe

users to exchange and did exchange files containing child pornography. Stevens also

testified that using VSS, he was able to access 715 images and at least 18 videos

                                          10
depicting child pornography that existed on Traufield’s computer on July 29, 2013.

Further, he told the court that the material had been deleted between July 29 and July

31, and subsequently emptied from the computer’s recycle bin. And he emphasized

that this material was not restored from unallocated space but was easily accessible

through Windows Explorer. Unlike Dobbs, a reasonable jury could infer from this

evidence that Traufield knowingly possessed the child pornography Stevens accessed

on his computer. To the extent Traufield argues that Dobbs precludes the district

court’s consideration of shadow copies, the case is inapposite.

          4. USSG § 2G2.2(b)(6)—Use of a Computer

      This two-level enhancement applies “[i]f the offense involved the use of a

computer or an interactive computer service for the possession, transmission, receipt,

or distribution of [child pornographic] material, or for accessing with intent to view

the material.” Id. § 2G2.2(b)(6). In his sentencing memorandum, Traufield agreed

this enhancement applies, but he urged the court not to consider it or to “greatly

discount” it because he asserted it applies in virtually every child-pornography case.

R., Vol. 1 at 154. On appeal, counsel contends we should review only for plain error

because Traufield waived this issue by failing to advance it at sentencing. See, e.g.,

United States v. Wireman, 849 F.3d 956, 960-62 (10th Cir. 2017) (reviewing for plain

error because although defendant raised issue in his sentencing memorandum, he

failed to object at sentencing). Even if Traufield preserved the issue, however, it is

meritless because we have previously rejected this argument. See United States v.

Miller, 318 F. App’x 701, 702-03 (10th Cir. 2009) (unpublished) (concluding that

                                           11
there was no improper double counting of criminal conduct because the defendant

“could have been sentenced under § 2G2.2(a)(2) without having used a computer”

and therefore “enhancing punishment for that specific and additional conduct is not

prohibited”).5

       B. Substantive Reasonableness

      Traufield also challenges the substantive reasonableness of his sentence. “In

evaluating the substantive reasonableness of a sentence, we ask whether the length of

the sentence is reasonable considering the statutory factors delineated in 18 U.S.C.

§ 3553(a).” United States v. Hamilton, 510 F.3d 1209, 1217-18 (10th Cir. 2007).

Here, consistent with its obligations under § 3553(a), the district court accounted for

the nature and characteristics of the offense, noting this case was not at the high end

of the spectrum of sex offenses, but it was still a “very serious offense.” R., Vol. 4 at

212. The court also considered Traufield’s history and characteristics, recognizing

he came from a “very nice family,” had “done public-service-type” activities, and

was intelligent and articulate. Id. at 213-14. But the court recognized he had a

criminal history, including two prior felonies, multiple convictions for assault and

driving under the influence, and numerous prior incarcerations.6 Also, the court



      5
        We may consider non-precedential, unpublished decisions for their
persuasive value. See Fed. R. App. P. 32.1; 10th Cir. R. 32.1(A).
      6
         Traufield makes a passing argument that the court erred in referencing a prior
felony conviction for check fraud. Because he failed to object, we review only for
plain error. We perceive none. Although the revised PSR confirms his guilty plea to
check fraud was dismissed after a successful completion of a deferred judgment, see
                                           12
referenced the need for deterrence, the need to protect the public safety, and the need

to avoid unwarranted sentencing disparities. The court then considered the

applicable sentencing range, the types of sentences available, and the statutory

maximum, and determined that a sentence of 108 months, at the low-end of the

Guidelines range, was sufficient, but not greater than necessary, to achieve the

sentencing objectives. We conclude the district court satisfied its statutory

obligations and imposed a substantively reasonable sentence.

      C. Conditions of Supervised Release

      Finally, Traufield requests that we vacate several conditions of supervised

release requiring that 1) he incur no new credit charges without probation’s approval,

unless he is compliant with the periodic payments assessed by the court, 2) he

participate in cognitive behavioral treatment (CBT) and 3) substance abuse treatment,

4) he submit to polygraph and 5) visual response testing, 6) his computer use be

restricted and 7) monitored, 8) he have no contact with minors, 9) he inform

probation of all significant relationships, and 10) he register as a sex offender. He

says these conditions are overbroad, unconstitutional, unrelated to his offense,

unnecessarily harsh, and/or a greater deprivation to his liberty than necessary.

      Traufield’s failure to object at sentencing to any of these conditions means we

review only for plain error. See Barela, 797 F.3d at 1192 (“[R]eversal is warranted

under plain error test when error is clear and obvious under current law; affects


R., Vol. 3 at 103, the district court referenced this offense only in commenting on
Traufield’s characteristics and “dishonest behavior,” id., Vol. 4 at 214.
                                           13
substantial rights; and seriously affects the fairness, integrity or public reputation of

judicial proceedings.”). “The district court is required to give reasons on the record

for the imposition of special conditions of supervised release,” although “[t]he court

need only provide a generalized statement of its reasoning.” United States v. Hahn,

551 F.3d 977, 982 (10th Cir. 2008) (internal quotation marks omitted). We will

vacate a special condition under plain error review only if the record reveals no basis

for the condition. Barela, 797 F.3d at 1192. However, “[i]f the record reveals a

basis, there is no reasonable probability that but for the error the defendant’s sentence

would be different and thus the proceeding’s fairness is not impacted.” Id.

       In imposing the special conditions of supervised release, the district court

stated: “I’ve reviewed [the conditions of supervised release as recommended by

probation], and they seem entirely appropriate, and I accept and adopt them.” R.,

Vol. 4 at 216. Although this was a brief statement, we need not decide whether it

was adequate, because even if it was not, Traufield fails to address any of the other

plain error prongs, and it is neither clear nor obvious that the court erred in imposing

any of the foregoing special conditions. Indeed, our independent examination of the

record indicates there is ample justification for the special conditions imposed. See

Barela, 797 F.3d at 1193 (finding no plain error where record supported imposition

of special conditions). Of course, the nature of the offense and the means by which

Traufield committed it justify the CBT, polygraph, and visual response testing, as

well as the restrictions on his computer use and monitoring. They also justify the

restriction on his contact with minors, the requirement that he apprise probation of

                                            14
his significant relationships, and his sex-offender registration. Further, Traufield’s

history of substance abuse, which the district court observed includes four

alcohol-related driving offenses, warrants the special condition that he obtain

treatment for his problem. And the district court’s imposition of $12,000 in

restitution justifies the special condition requiring probation’s approval for new

credit accounts unless he was making his periodic payments, particularly because the

revised PSR shows that he owes more than $21,000 in past child support payments.

                                           III

      Neither the brief submitted by Traufield’s attorney, nor Traufield’s pro se

response, suggests any non-frivolous basis for this appeal. Likewise, our

independent examination of the record and the relevant legal authorities discloses no

basis for reversing. Accordingly, we grant counsel’s motion to withdraw and dismiss

this appeal.


                                                      Entered for the Court


                                                      Paul J. Kelly, Jr.
                                                      Circuit Judge




                                           15
