                                                       NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                               _______________

                                     No. 14-2008
                                   _______________

                           UNITED STATES OF AMERICA

                                           v.

                                  STEPHEN PUZA, III,

                                       Appellant
                                   _______________

                    On Appeal from the United States District Court
                        for the Middle District of Pennsylvania
                                  (3-13-cr-00192-001)
                      District Judge: Honorable Edwin M. Kosik
                                   _______________

                   Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                  January 13, 2015

               Before: AMBRO, FUENTES, and ROTH, Circuit Judges

                               (Filed: February 12, 2015)

                                   _______________

                                       OPINION





 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
FUENTES, Circuit Judge:

       Stephen Puza created a secret folder linked to a file-sharing service on his

girlfriend’s computer. The folder contained a trove of child pornography. When his

girlfriend discovered it, she reported Puza to police. Puza was thereafter charged in the

Middle District of Pennsylvania on a single count indictment that he “did knowingly and

willfully receive and distribute [child pornography] in violation of 28 U.S.C.

§ 2252(a)(2).” The District Court accepted Puza’s guilty plea on October 29, 2013 after a

full Rule 11 colloquy. The District Court sentenced Puza to 188 months in prison, the

bottom of a calculated Guidelines range that included the § 2G2.2(b)(3) enhancement for

possession of child pornography with intent to distribute.1

       On appeal, Puza argues that an intervening decision of our court, United States v.

Husmann, 765 F.3d 169 (3d Cir. 2014), makes clear that he pled guilty to a crime he did

not commit.2 Section 2252(a)(2) makes it illegal to “knowingly receive[], or distribute[],

any visual depiction using any means or facility of interstate commerce . . . if (i) the

producing of such visual depiction involves the use of a minor engaging in sexually

explicit conduct, and (ii) such visual depiction is of such conduct.” In Husmann we held

that “the term ‘distribute’ in § 2252(a) . . . requires evidence that a defendant's child



1
  Puza does not challenge the application of the Sentencing Guidelines § 2G2.2(b)(3)
enhancement for possession of child pornography with intent to distribute.
2
  Puza originally asserted this argument in a pro se letter filed with the court on
September 10, 2014. On August 4, 2014, his counsel submitted an Anders brief seeking
to cease representation in a meritless appeal. Our decision in Husmann was filed on
September 4, 2014. Counsel withdrew the Anders petition after we asked for
                                             2
pornography materials were completely transferred to or downloaded by another person.”

Husmann, 765 F.3d at 176. Husmann had placed child pornography materials in a shared

folder accessible to others, but the government lacked evidence that third parties actually

downloaded the materials he made available. Finding no basis for a finding of

“distribution,” we vacated Husmann’s conviction under § 2252(a)(2), which was based

on his alleged “distribution” only. According to Puza, he never activated the function on

his computer permitting his child pornography to be shared with third parties, and so

never even made his materials available. Citing Husmann, he contends it is not possible

that he “distribute[d]” his child pornography within the meaning of § 2252(a)(2), and

thus the District Court should not have accepted his plea.

       To Puza’s point, when the government described its evidence against him at the

guilty plea hearing, it did not describe any evidence that would have allowed a factfinder

to conclude that Puza’s images were transferred to or downloaded by one or more third

parties. This does not, however, entitle Puza to relief. Puza, unlike Husmann, was also

charged with violating § 2252(a)(2) based on receiving child pornography. As the

statutory text and our precedent make clear, receipt is sufficient for a conviction under §

2252(a)(2). See United States v. Finley, 726 F.3d 483, 496 (3d Cir. 2013) cert. denied,

135 S. Ct. 259 (2014) (“Section 2252(a)(2) does not create distinct offenses for

‘receiv[ing]’ and ‘distribut[ing] child pornography.”). See also Husmann, 765 F.3d at 176

(“In the end, our interpretation of “distribute” in § 2252(a)(2) might affect the



supplemental briefings on the import of Husmann.
                                             3
government's charging decisions, but it does not handicap the government's ability to

prosecute child pornography offenses.”). Puza pled guilty and admitted to the conduct of

receipt in his plea agreement and at his plea colloquy, and does not dispute now that he

received child pornography. Irrespective of whether Puza violated § 2252(a)(2) by

distributing child pornography, there is no question that he violated § 2252(a)(2) by

receiving child pornography.

       The District Court had adequate factual basis to accept Puza’s plea to a violation

of §2252(a)(2). See United States v. Lessner, 498 F.3d 185, 197 (3d Cir. 2007) (to

comport with Rule 11 requirement that there is a factual basis of the plea, the District

Court must “find sufficient evidence in the record as a whole to justify a conclusion of

guilt”). We will therefore affirm.




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