                            PUBLISHED

                UNITED STATES COURT OF APPEALS
                    FOR THE FOURTH CIRCUIT


                         No. 12-4901


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

WILLIAM DEVON MCMANUS,

                Defendant - Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro.     Catherine C.
Eagles, District Judge. (1:12-cr-00174-CCE-1)


Argued:   September 20, 2013       Decided:   October 30, 2013


Before GREGORY and DUNCAN, Circuit Judges, and Samuel G.
WILSON, United States District Judge for the Western
District of Virginia, sitting by designation.


Vacated and remanded for resentencing by published opinion.
Judge Duncan wrote the opinion, in which Judge Gregory and
Judge Wilson joined.


ARGUED:    Eugene Ernest Lester, III, SHARPLESS & STAVOLA,
PA, Greensboro, North Carolina, for Appellant.      Anand P.
Ramaswamy,    OFFICE  OF   THE   UNITED   STATES   ATTORNEY,
Greensboro, North Carolina, for Appellee.         ON BRIEF:
Ripley Rand, United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Greensboro, North Carolina, for Appellee.
DUNCAN, Circuit Judge:

       William Devon McManus pleaded guilty to one count of

Possession of Child Pornography in violation of 18 U.S.C. §

2252A(a)(5)(B) and (b)(2).                He was sentenced to 72 months’

imprisonment and a subsequent 10 years’ supervised release.

McManus     appeals       his   sentence         on   the    ground     that    the

district     court        improperly           calculated      the     applicable

Sentencing Guideline range.                For the reasons that follow,

we vacate and remand for resentencing.



                                          I.

       McManus used a file-sharing computer program known as

Gigatribe    to    acquire      and   maintain        images    and    videos    of

child pornography.            Gigatribe allows users to share files

with   other      users      with   whom       they   have   become     “friends”

through     an    invitation        and        acceptance    feature     of     the

program.       A user is not able to see or access another

user’s files unless: 1) one user has invited the other and

the other has accepted the invitation; and 2) the other

user maintains a shared folder, accessible to friends, that

is populated with files.

       McManus created a shared folder and populated it with

the files of child pornography he possessed.                         An FBI agent

downloaded       some   of    these   files       from   McManus’s      Gigatribe

                                           2
account, leading to McManus’s arrest and indictment.                           There

is no evidence in the record to indicate how the FBI agent

gained access to McManus’s restricted shared folder.                            The

FBI agent gave McManus nothing in exchange for the files he

downloaded       and    there     is     no      evidence        that    any   other

individual downloaded pornographic files from McManus.

       At the sentencing hearing following McManus’s guilty

plea, the district court applied a five-level enhancement

under United States Sentencing Guideline § 2G2.2(b)(3)(B)

to     McManus’s       base     possession         offense        level.        This

enhancement       applies     when     a       defendant     has    “distributed”

child       pornography    “for    the         receipt,     or    expectation    of

receipt, of a thing of value, but not for pecuniary gain.”

Applying      this     enhancement,        the    district       court     concluded

that       McManus’s    offense    level         was   33    and    his    criminal

history category was I. 1              The district court calculated a

sentencing range of 135 to 168 months which it reduced to a

range of 120 to 120 months to comply with the statutory

maximum. 2      The district court applied a downward variance

based primarily on the relative seriousness of McManus’s




       1
        McManus does not challenge any of the district
court’s other non-distribution enhancements under § 2G2.2.
     2
       See 18 U.S.C. § 2252A(b)(2).
                                           3
offense,      resulting          in        a       sentence         of     72     months’

imprisonment. 3



                                           II.

     On     appeal,       McManus      contends            that    his     sentence      is

procedurally           unreasonable            because      the      district        court

improperly calculated his Guideline range under U.S.S.G. §

2G2.2(b).         He    argues    that         the    district       court       erred   by

applying the five-level enhancement under § 2G2.2(b)(3)(B)

instead      of        the   two-level               enhancement           for     simple

distribution under § 2G2.2(b)(3)(F).

     We review criminal sentences for reasonableness using

an abuse of discretion standard.                           Gall v. United States,

552 U.S. 38, 51 (2007).                    We review the district court’s

factual findings for clear error and its legal conclusions

de novo.     United States v. Strieper, 666 F.3d 288, 292 (4th

Cir. 2012).        The review proceeds in two parts.                             We first

determine     whether        the       district            court         committed       any

significant       procedural      error.             Id.      If    the     sentence     is

procedurally            sound,        we           review          its      substantive

reasonableness to determine whether in the totality of the


     3
        McManus does not challenge the district court’s
imposition of a ten-year period of supervised release. A
term of supervised release from one year up to life is
permissible for sex offenses. U.S.S.G. § 5D1.2(b).
                                               4
circumstances the district court abused its discretion by

concluding that the sentence satisfies the standards set

out in 18 U.S.C. § 3553(a).              Gall, 552 U.S. at 51.

     Interpretation           of   the    Sentencing          Guidelines     is   a

question of law that we review de novo.                        United States v.

Price, 711 F.3d 455, 458 (4th Cir. 2013).                         “Although the

sentencing     guidelines           are        only         advisory,      improper

calculation    of    a   guideline        range      constitutes        significant

procedural     error,         making          the     sentence        procedurally

unreasonable and subject to being vacated.”                       Hargrove, 701

F.3d 156, 161 (4th Cir. 2012).                      However, sentencing error

is subject to harmlessness review.                      Sentencing “error is

harmless if the resulting sentence [is] not ‘longer than

that to which [the defendant] would otherwise be subject.’”

United States v. Mehta, 594 F.3d 277, 283 (4th Cir. 2010)

(quoting United States v. Stokes, 261 F.3d 496, 499 (4th

Cir. 2001)).



                                       III.

     The     proper       manner         of     applying        the      five-level

§2G2.2(b)(3)(B) enhancement to a defendant’s use of a file-

sharing    program       to    distribute           child    pornography     is   a

question of first impression in this Circuit.                             Strieper,

666 F.3d at 295 (finding that we have not yet answered this

                                          5
question and declining to do so based on the procedural

posture of the case).             The central issues before us are the

meaning      of    the      phrase     “[d]istribution          for    the     ...

expectation of receipt[] of a thing of value,” and what

evidence constitutes sufficient proof that a defendant had

such an expectation.              U.S.S.G. § 2G2.2(b)(3)(B).           Although

a number of other circuits have interpreted this phrase, we

have not, and it is incumbent upon us to do so “according

to    the     ordinary       rules      of     statutory        construction.”

Strieper, 666 F.3d at 293-94.

                                       A.

      When interpreting the Sentencing Guidelines, “[a]s in

all cases of statutory interpretation, our inquiry begins

with the text of the statute.”                 United States v. Ashford,

718 F.3d 377, 382 (4th Cir. 2013) (quoting Chesapeake Ranch

Water Co. v. Bd. of Comm’rs of Calvert Cnty., 401 F.3d 274,

279   (4th    Cir.    2005)).        “We     determine    the      plainness   or

ambiguity of the statutory language ... by reference to the

language     itself,        the    specific     context       in    which    that

language is used, and the broader context of the statute as

a whole.”     United States ex rel. Carter v. Halliburton Co.,

710 F.3d 171, 189 (4th Cir. 2013) (internal quotation marks

and citations omitted).             “[W]here the statutory language is

ambiguous     we     turn    to    other     evidence    to     interpret      the

                                        6
meaning     of   the    provision       ...   including    the     Sentencing

Guidelines       commentary.”           Ashford,     718    F.3d     at    382

(alteration      in    original)       (internal    quotation      marks   and

citations omitted).

     Section 2G2.2 states, in relevant part, that:

     If the offense involved:
     (A) Distribution for pecuniary gain, increase by
     the number of levels from the table in § 2B1.1
     (Theft,    Property   Destruction,    and    Fraud)
     corresponding to the retail value of the material,
     but by not less than 5 levels.
     (B) Distribution for the receipt, or expectation
     of receipt, of a thing of value, but not for
     pecuniary gain, increase by 5 levels.
     (C) Distribution to a minor, increase by 5 levels.
     (D) Distribution to a minor that was intended to
     persuade, induce, entice, or coerce the minor to
     engage in any illegal activity, other than illegal
     activity covered under subdivision (E), increase
     by 6 levels.
     (E) Distribution to a minor that was intended to
     persuade, induce, entice, coerce, or facilitate
     the travel of, the minor to engage in prohibited
     sexual conduct, increase by 7 levels.
     (F) Distribution other than distribution described
     in subdivisions (A) through (E), increase by 2
     levels.

U.S.S.G. § 2G2.2(b)(3).

      In the context of the entirety of § 2G2.2 and our

precedent    interpreting     its       elements,   the    meaning    of   the

phrase at issue is unambiguous.               It is clear from the text

of   the   Guidelines     that     §    2G2.2(b)(3)(F)     is    a   residual

enhancement and that application of §§ 2G2.2(b)(3)(A) - (E)

require proof beyond that necessary to trigger § (F).                       In


                                        7
United States v. Layton, we held that the elements of § (F)

are satisfied when a defendant knowingly permits others to

access     and       retrieve            child       pornography          files     in    the

defendant’s possession, even if he does so passively.                                     564

F.3d 330, 335 (4th Cir. 2009).                        A plain reading of the text

also     indicates        the        type     of      additional         proof    that     is

required      to     trigger         §     (B).        If     the    Government      proves

distribution,            it     must       then       prove       that    the     defendant

distributed          pornography            with      the        specific    purpose       of

securing some kind of benefit in exchange.                                The Government

must show that the defendant conditioned his decision to

distribute his files on his belief that he would receive

something       of    value      in        return.          The     requisite     proof   of

intent     is      the        same    whether         the     exchange      is     realized

(“receipt”)        or     not    (“expectation              of    receipt”).        To    the

extent that there is any dispute about the meaning of “a

thing of value, but not ... pecuniary gain,” that term is

defined in the application notes, and includes the exchange

of child pornographic materials.                        U.S.S.G. § 2G2.2, cmt. 1.

There is no indication in the text of the statute that

“expectation”           should        be    given      anything          other    than    its

commonly understood meaning.                         See United States v. Powell,

680    F.3d     350,      355        (4th    Cir.      2012).            However,    it   is

important to note that an expectation is more than a mere

                                                 8
hope.        A thing that is expected is reasonably likely to

occur, while a thing that is hoped for is at best merely

possible.

       The burden is on the Government to prove the facts

needed       to        support        a     sentencing       enhancement      by    a

preponderance of the evidence.                       United States v. Grubbs,

585 F.3d 793, 799-803 (4th Cir. 2009).                            In light of the

above,       to        trigger        the     §     2G2.2(b)(3)(B)        five-level

enhancement, the Government must show that the defendant:

1)   knowingly          made     child       pornography     in     his   possession

available         to    others        by    some    means,    and    2)   made     his

pornographic materials available for the specific purpose

of obtaining something of valuable consideration, such as

more pornography, whether or not he actually succeeded in

obtaining the desired thing of value.



                                             IV.

       In this case, the parties agree that McManus’s acts

are sufficient to satisfy at least the first element of

proof and to trigger the residual distribution enhancement

under Layton.           The Government argues that McManus’s use of

Gigatribe to distribute child pornography “constitutes acts

greater than those seen in Layton,” and that proof of those

acts    is    sufficient         to       satisfy   the   additional      burden   of

                                              9
proof for the five-level enhancement.                     Appellee’s Br. 10.

It contends that: 1) the invitation and acceptance feature

of   Gigatribe     renders        any        use     of     the     program        for

distribution     inherently         reciprocal,             and         2)   McManus

intentionally    used     Gigatribe          to    create    a     shared    folder

containing    pornographic     material            with   the     knowledge       that

other users could access and download those files. 4                                We

address, and reject, these arguments in turn.

                                        A.

     The     Government    first        argues       that       “[t]here     is     an

inherent     reciprocity     in    the        invitation          and    acceptance

process necessary to gain mutual access to users’ files

which exceeds the distribution seen in Layton, and supports

U.S.S.G.     2G2.2(b)(3)(B)’s       ‘expectation            of     receipt’        and

resulting five-level increase.”                   Appellee’s Br. 10.              This

argument relies primarily on the distinction between open

file-sharing programs, like the one used in Layton, and

closed file-sharing programs, like Gigatribe.                            In an open

     4
       The Government makes a third argument that the file
selection feature of Gigatribe renders its use an act
materially greater than use of the program in Layton.    It
contends that users of Gigatribe are more likely than users
of other programs to know the content of the files they are
downloading because they are able to visually preview and
individually select files to download.      Because McManus
does not contend that he was not in possession of child
pornography    or   that    he   downloaded    such   files
unintentionally, this feature of Gigatribe is irrelevant to
our analysis.
                                        10
program, if a user chooses to create a shared folder, its

contents are available to all other users.                In Gigatribe,

if a user chooses to create a shared folder, its contents

are available only to those other users with whom he has

become “friends,” either by inviting them or by accepting

invitations from them.

       Although     the   Government    does   not    elaborate   on   its

proposition, it seems to be arguing that no Gigatribe user

would become friends with another user unless he believed

that the other user would allow access to his files.                   The

district court relied on this implied reasoning to conclude

that       the   five-level   enhancement      was    warranted   because

“you’re inviting people in and you’re sharing so that they

will let you see their stuff, you show them your stuff.”

J.A. 52-53.        Affirming the district court’s reliance on the

Government’s inherent reciprocity argument would establish

a per se rule applying the five-level enhancement to every

Gigatribe distribution offense absent any evidence of the

particular defendant’s state of mind. 5              We decline to adopt

the Government’s proposed rule.




       5
       At oral argument the Government contended that its
position would not result in a per se application of the
five-level enhancement.   However, it was unable to explain
how its proposed rule could be individualized.
                                   11
                                                i.

        Because     §     2G2.2(b)(3)(B)                  requires       proof        of     an

individual defendant’s mental state to trigger the five-

level enhancement, a per se rule is inappropriate.                                    Beyond

its attempt to evade § (B)’s requirement of individualized

proof,    the     Government’s           proposed          per     se   rule    is    simply

unsupported by the facts.

       Although we have not addressed this question, both the

Tenth and Eleventh Circuits have recognized the fallacy of

inherent-reciprocity            reasoning             in     cases      involving          open

file-sharing programs.                   In United States v. Geiner, the

Tenth     Circuit       held        that    because          file-sharing         programs

generally allow users to retrieve files without sharing any

files    of   their      own,       a    defendant           who    distributes        child

pornography        using        a       file-sharing             network       “does        not

necessarily        do     so        in     exchange           for       similar       files,

particularly       when       the       defendant          understands         that    these

files are available even if he chooses not to share his

own.”      498    F.3d        1104,      1111        (10th    Cir.      2007).        Geiner

emphasized the Guideline’s requirement that distribution be

“for the receipt or expectation of receipt,” and concluded

that     expectation           must        be        an    individualized            factual

determination.          Id.



                                                12
     In United States v. Spriggs, the Eleventh Circuit held

that a user’s mere “hope that a peer would reciprocate his

generosity” was insufficient to show distribution with an

expectation of receipt “[w]ithout evidence that [that user]

and another user conditioned their decisions to share their

illicit    image        collections    on    a    return    promise       to   share

files.”      666 F.3d 1284, 1288 (11th Cir. 2012).                       In United

States v. Vadnais, the Eleventh Circuit held that “logic

compels      the    conclusion        that   more     [than    use]       must    be

required      for       the   five-level         enhancement,”       because      it

“require[s]        that   the   distribution        occur    for     a    specified

purpose.”      667 F.3d 1206, 1209 (11th Cir. 2012).                        Vadnais

held that inferring an expectation of receipt from mere use

is unsupported by the operation of an open file-sharing

program because “freeloading” is possible.                     Id.       As Geiner

recognized, knowing use of a sharing feature proves only an

intent to distribute because a user does “not need to share

child pornography to get pornography.”                      Vadnais, 667 F.3d

at   1210.          A    knowledgeable       file-share       user       “ha[s]   no

expectation of receiving any more child pornography merely

by sharing his files” because he understands that he does

not need to make his files available to gain access to

those of other users.           Id.



                                        13
                                            ii.

       Contrary to the Government’s contention, Gigatribe’s

invitation       and    acceptance          feature       does      not      alter    this

analysis.         A     per        se     application          of     the    five-level

enhancement might be appropriate, for example, in a case

where a defendant used a website which permitted users to

download a file of child pornography only if they first

submitted    a     file       of        child     pornography         that    would     be

redistributed through the same mechanism to other users.

In such a program, use of the website would necessarily

satisfy   all     of    the    requirements          of    §    (B)    because       users

would knowingly distribute pornography, necessarily intend

to receive pornography in return, and reasonably expect to

receive     pornography        in         exchange     for      their        pornography

because that would be the only purpose of the system.                                 This

fictitious system is inherently reciprocal in a way that

would     allow        per     se        application           of     the     Guideline

enhancement.       The same cannot be said for Gigatribe.

       The undisputed facts found by the district court show

that    within    the    Gigatribe          system:       1)    the    existence       and

content of a user’s files are unknown to other users absent

direct communication, and 2) a user does not necessarily

have access to another user’s files merely because they are



                                            14
Gigatribe “friends.”         The Government’s own evidence shows

that:

     A user can prevent anyone from seeing what they
     share with other users and can choose to share
     everything with all users or just with specific
     users .... [I]nformation including thumbnails of
     the pictures and/or videos on the ... users [sic]
     system are ... only sent if the user on the other
     end has physically either invited the user or
     accepted to invite of the use [sic]. Users make
     several active decisions that contribute to the
     distribution of the files.    First, they make an
     active decision to download and setup a file
     sharing program.   Second, they actively set up a
     shared folder and make a choice on the folder and
     contents that they share.     Third, they make an
     active decision to open and allow access to other
     users they ‘friend’ to see what they have .... A
     user can scroll through the available files that
     another user has allowed them to see.

Appellee’s Br. 3-4.

     It is apparent that Gigatribe users can freeload in

the same manner as users of open file-sharing programs.               A

Gigatribe   user     can   maintain    an   account   and   invite   and

accept friends without sharing files.            A user can also make

files available only to selected friends and can password

protect   certain    files    within   folders   that   are    otherwise

accessible to friends.         Moreover, a user’s files are not

visible to any other user who is not that user’s friend,

and no user has any reason to assume that any other user

possesses   shared    files    which   he   would   consider    valuable

because Gigatribe can host any type of music, picture, or


                                  15
video file.        Based on these features, we must conclude that

a user who understands the basic operation of the Gigatribe

program      can    have    no     reasonable     expectation          of     gaining

access to pornographic files or any other thing of value

solely because he creates a shared folder populated with

files containing child pornography.

      Although it is perhaps more likely that a Gigatribe

user, as compared to the user of an open system, would only

become    friends     with,      and    therefore       distribute       files    to,

other users who he believed possessed pornographic files

and   were    willing       to   exchange       them,    the      Government     has

presented     no    evidence       to   support    this      supposition.         It

submitted no evidence that McManus distributed his files to

any user as a barter or trade, that Gigatribe enforces a

rule that friends must make files available to each other,

or that a strong custom has arisen within the Gigatribe

community to that same effect.                The Government submitted no

evidence that McManus screened possible friends based on

their     likelihood        of     possessing     valuable         files      before

inviting them or accepting their invitations.                          Because the

contents     and     even    the    existence     of     a   Gigatribe        user’s

shared     files     are    unknown,      the    only     way     a    user    could

accomplish         such     screening     would     be       by       communicating

directly with other users.              If users do in fact communicate

                                         16
in    this    manner,          then    the      Government         should       be       able    to

gather actual individualized evidence to satisfy the second

element       of    §    (B)    by    seizing        defendants’         chat        logs       with

undercover agents and other users.

       The Government’s argument is purely speculative, and

all    but    the       most    superficial           investigation            demonstrates

that    the    speculation            is   unreasonable.                Even    the       way    in

which    the       FBI     agent       acquired        the       proof    for        McManus’s

underlying          conviction             in     this           case     undercuts              the

Government’s            inherent-reciprocity             claim.           The       agent        was

able to download pornography from McManus without supplying

any like files in return, and there is no evidence that the

agent    represented            to    McManus        that    he    had    files          and    was

willing to trade.               Whether or not Gigatribe users routinely

distribute         child       pornography        gratuitously,           it        is    clearly

possible       based       on    the       features         of    the     system          that     a

Gigatribe          user    could       distribute           his    files       without          any

reasonable expectation of receiving anything of value in

exchange.               Therefore,         the       proposed       per        se        rule    is

inappropriate.

                                                B.

       Because we decline to apply the Government’s proposed

per se rule, we must vacate McManus’s sentence unless the

Government submitted sufficient individualized evidence of

                                                17
McManus’s intent to distribute his pornographic materials

in expectation of receipt of a thing of value.                           The only

individualized evidence that the Government offers is that

McManus “knew of the file-sharing features of Gigatribe,”

when   he    used    the   program    to      acquire     and   maintain      child

pornography     files      and    that      “he     was    aware     that      files

utilized in Gigatribe could be shared with other Gigatribe

users.”      Appellee’s Br. 10.           This evidence proves only the

first element of § (B) and is only sufficient to trigger §

(F), an enhancement that McManus concedes is appropriate.

       The   Government      failed      to    carry      its     burden.          The

district       court       improperly          applied        the       five-level

enhancement, resulting in improper calculation of McManus’s

sentencing     range.       The    district         court’s     reliance      on    an

improperly          calculated       sentencing           range       constitutes

significant     procedural        error       and    McManus’s       sentence       is

subject to vacation unless the error was harmless.



                                       V.

       McManus’s      properly     calculated         offense       level     of    30

would have generated a Guideline range of 97 to 120 months’

imprisonment.          Although      the      district        court’s       72-month

sentence is well below the bottom of this corrected range,

we cannot say with certainty that the district court would

                                       18
not have sentenced McManus to even less time in custody if

it had used the proper starting point.    See Mehta, 594 F.3d

at 284.   Therefore,     we cannot say that the error was

harmless and remand for resentencing is necessary.    Because

we vacate McManus’s sentence and remand on the ground that

it is prejudicially procedurally unreasonable, we need not

address its substantive reasonableness.



                             VI.

For the foregoing reasons, the district court’s sentence is

                       VACATED AND REMANDED FOR RESENTENCING.




                              19
