                                                                   [DO NOT PUBLISH]

                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT
                                    ________________________               FILED
                                                                  U.S. COURT OF APPEALS
                                            No. 10-15265            ELEVENTH CIRCUIT
                                        Non-Argument Calendar           JUNE 9, 2011
                                      ________________________           JOHN LEY
                                                                          CLERK
                              D.C. Docket No. 2:10-cr-14060-KMM-1

UNITED STATES OF AMERICA,

llllllllllllllllllllllllllllllllllllllll                                  Plaintiff-Appellee,

                                               versus

NEAL CHRISTOPHER GAUGHRAN,

llllllllllllllllllllllllllllllllllllllll                            Defendant-Appellant.

                                     ________________________

                           Appeal from the United States District Court
                               for the Southern District of Florida
                                 ________________________

                                            (June 9, 2011)

Before TJOFLAT, MARTIN, and FAY, Circuit Judges.

PER CURIAM:

         In appealing his prison sentence of 210 months imposed following a plea of

guilty to receipt of child pornography, in violation of 18 U.S.C. § 2252(a)(2),
appellant raises one issue: whether the district court, in determining the Guidelines

sentencing range, erred in enhancing the base offense level (for the offense) by

five levels, pursuant to U.S.S.G. § 2G2.2(b)(3)(B), for distribution with the

expectation of receipt of a “thing of value” based on his alleged use of

peer-to-peer file-sharing software. We resolve the issue against appellant and

therefore affirm.

      We review the district court’s factual findings for clear error and its

application of the Sentencing Guidelines to those facts de novo. United States v.

Bender, 290 F.3d 1279, 1284 (11th Cir. 2002). “For a factual finding to be clearly

erroneous, [we], after reviewing all of the evidence, must be left with a definite

and firm conviction that a mistake has been committed.” United States v.

Rodriguez-Lopez, 363 F.3d 1134, 1137 (11th Cir. 2004) (internal quotations

omitted).

      The base offense level of a § 2252(a)(2) offense is enhanced by five levels

under § 2G2.2(b)(3)(B) if the offense involved the “distribution 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). Child pornography can constitute a “thing of value”

for purposes of the enhancement. U.S.S.G. § 2G2.2, comment. (n.1).

“Distribution” is defined as including “posting material involving the sexual

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exploitation of a minor . . . for public viewing but does not include the mere

solicitation of such material by a defendant.” Id. When a defendant distributes

child pornography with the expectation that he will receive other child

pornography in exchange, the district court may properly apply this enhancement.

Bender, 290 F.3d at 1286.

      Appellant has not shown that the district court clearly erred in applying the

§ 2G2.2(b)(3)(B) enhancement. We are not left with the “definite and firm”

conviction that the court made a mistake because it could reasonably find on the

record before it that appellant was aware of the nature of his file-sharing program

and had the expectation of receiving additional child pornography in exchange

with those who accessed his shared folder.

      AFFIRMED.




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