                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 00-2539
                                   ___________

United States of America,               *
                                        *
             Appellee,                  *
                                        *
      v.                                * Appeal from the United States
                                        * District Court for the Northern
David Imgrund,                          * District of Iowa.
                                        *
             Appellant.                 *         [UNPUBLISHED]
                                   ___________

                             Submitted: March 13, 2001

                                  Filed: April 3, 2001
                                   ___________

Before MORRIS SHEPPARD ARNOLD and HEANEY, Circuit Judges, and
      TUNHEIM,1 District Judge.
                                ___________

PER CURIAM.

       This is the second time that this case has been before us. In United States v.
Imgrund, 208 F.3d 1070, 1073 (8th Cir. 2000), we remanded the matter to the district
court for resentencing. We held that Mr. Imgrund's sentence could not properly be
enhanced for distributing pornographic images of children, see U.S.S.G.
§ 2G2.2(b)(2)(B), unless the government proved that Mr. Imgrund had an "expectation

      1
      The Honorable John R. Tunheim, United States District Judge for the District
of Minnesota, sitting by designation.
of receiving pornographic images in exchange for the images [that] he sent," id. at
1073. On resentencing, the district court held that the government had met that burden
and applied the enhancement. We reverse.

       It is true that Mr. Imgrund sent pornographic images in the hopes of receiving
some in return, for he inquired whether his correspondent had any pictures in a manner
and context clearly carrying an implied invitation to respond in like kind. But a hope
is not an expectation. An expectation could arise only from a previous exchange with
the correspondent, a demonstrated custom of exchange commonly observed in the
circumstances that the case presented, or, at the very least, a previous agreement to
exchange. Since proof of such matters was absent here, the district court erroneously
applied the enhancement.

       The case is remanded to the district court for further proceedings not inconsistent
with this opinion.

      A true copy.

             Attest:

                 CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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