              Case: 16-16410    Date Filed: 08/23/2017   Page: 1 of 9


                                                            [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                 No. 16-16410
                             Non-Argument Calendar
                           ________________________

                      D.C. Docket No. 1:16-cr-20177-JAL-1

UNITED STATES OF AMERICA,

                                                                  Plaintiff-Appellee,

                                       versus

FULVIO MONETTI,

                                                             Defendant-Appellant.
                           ________________________

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

                                 (August 23, 2017)

Before MARTIN, JORDAN, and ROSENBAUM, Circuit Judges.

PER CURIAM:

      Fulvio Monetti appeals the 144-month sentence he received after pleading

guilty to one count of knowing receipt of child pornography, 18 U.S.C.

§ 2252(a)(2), (b)(1). After careful review, we affirm.
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                                        I.
      Monetti pled guilty to knowingly receiving child pornography. As part of

his plea, Monetti admitted that: Law enforcement identified four IP addresses

sharing child pornography, all of which were assigned to Monetti’s home. They

accessed the pornography through the Ares Peer-to-Peer file-sharing network. A

search of Monetti’s laptop showed the Ares software had been downloaded on it,

and his laptop contained photographs and videos of child pornography.

      The presentence investigation report (“PSR”) said that Monetti’s laptop

contained 4,518 images of child pornography. It also said Monetti left the Ares

program running on his computer, which allowed other users to download the files

in his shared folder. Through that process, he shared 176 files of child

pornography with others.

      The PSR calculated Monetti’s total offense level to be 34. This calculation

included a two-level increase for distribution of child pornography under United

States Sentencing Guidelines (“USSG”) § 2G2.2(b)(3)(F). The PSR also set out

that Monetti had a criminal history category of I. It thus set Monetti’s guideline

imprisonment range at 151 to 188 months.

      Monetti objected to the two-level increase for distribution of child

pornography under USSG § 2G2.2(b)(3)(F). He pointed to a then-upcoming

amendment to this section of the guidelines that narrowed the two-level


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enhancement for application only where the defendant knowingly distributed the

child pornography. 1 Monetti said he should not qualify for the enhancement

because he had no desire to share with other users and took steps to prevent it.

Monetti further argued that instead of increasing his offense level under

§ 2G2.2(b)(3)(F), the PSR should have decreased his offense level by two levels

under § 2.G2.2(b)(1) because his conduct was limited to receiving the

pornography.

       At sentencing, the parties presented testimony regarding Monetti’s objection

to the distribution enhancement. First, the government called Special Agent Tim

Devine. Agent Devine testified that he downloaded suspected child pornography

files from Monetti’s computer on four or five different occasions. He also said that

while the Ares program is running, users cannot turn off the sharing function. In

addition, the government placed in evidence a report listing 239 files of child

pornography that were shared from Monetti’s computer.

       The defense then called Richard Connor, who testified as an expert in

computer forensics. Connor said he reviewed Monetti’s computer and did not find

any chats with other users about sharing child pornography. Neither did he find

evidence that any other civilian had downloaded files from Monetti’s shared

       1
         This amendment went into effect in the 2016 Sentencing Guidelines. See USSG Suppl.
to App. C, Amend. 801 (2016). Before § 2G2.2(b)(3)(F) was amended, this Court held that it did
not have a knowledge requirement. United States v. Creel, 783 F.3d 1357, 1360 (11th Cir.
2015).
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folder. He also said the default setting in Ares sends downloaded files into the

shared folder, which means those files are automatically shared with other Ares

users. On cross-examination, Connor conceded that Monetti changed the default

sharing settings on Ares so that only one user at a time could download one file at

a time from his shared folder.

       The district court overruled Monetti’s objection to the distribution

enhancement. 2 The court found that the evidence showed Monetti distributed child

pornography under the then-current version of the guidelines. The court also found

Monetti knew files in his shared folder would be shared with others based on two

facts: (1) Monetti changed the default sharing settings in the Ares program, which

showed he understood that files in the shared folder could be downloaded by other

users; and (2) Monetti kept the program running on his computer, which allowed

other users to download content from his shared folder. The court thus found that

even under the amended guidelines that would go into effect two months later, the

evidence supported the two-level distribution enhancement.

       Monetti also requested a variance from the guidelines imprisonment range

down to 60-months imprisonment. He presented evidence in support of his

request, including testimony from a psychologist that Monetti had a low risk of

committing future sex offenses or downloading child pornography again. Monetti

       2
         This ruling mooted Monetti’s objection that he should receive a two-level decrease
under § 2.G2.2(b)(1).
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also submitted an evaluation by a social worker, who concluded that Monetti had a

low risk of recidivism.

      When sentencing Monetti, the district court considered the sentencing

factors set out in 18 U.S.C. § 3553(a). The court specifically noted that Monetti

committed “a very, very serious offense,” but also that he had no criminal history

and the evidence in the record “indicate[d] he has a low risk of recidivism.” After

weighing the factors and the evidence, the district court rejected Monetti’s request

for a 60-month sentence, but sentenced him below his guideline range to 144-

months imprisonment.

                                          II.
      On appeal, Monetti argues (1) the district court erred in applying the

distribution enhancement under § 2G2.2(b)(3)(F) and (2) his 144-month prison

sentence was substantively unreasonable. We address each argument in turn.

                                         A.

      Monetti first argues the district court erred in applying the two-level

enhancement under § 2G2.2(b)(3)(F) for distribution of child pornography. We

review for clear error the district court’s findings of fact and de novo “its

application of those facts to justify a sentencing enhancement.” Creel, 783 F.3d at

1359 (quotation omitted).




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       As a preliminary matter, the parties dispute whether to apply the amended

language of § 2G2.2(b)(3)(F) that went into effect two months after Monetti was

sentenced. While this Court normally applies the version of the guidelines in

effect on the date of the sentencing hearing, we will also invoke future

amendments meant to clarify the guidelines. United States v. Jerchower, 631 F.3d

1181, 1184 (11th Cir. 2011). Here, we need not decide whether the amendment to

§ 2G2.2(b)(3)(F) was a mere clarification or a more substantive change. Either

way, the district court did not err in finding Monetti knowingly distributed child

pornography. That means the court also did not err in finding Monetti qualified for

the enhancement under either the narrower amended version of the guidelines or

the version in effect at sentencing.

       The 2016 version of USSG § 2G2.2(b)(3)(F) imposes a two-level

enhancement “[i]f the defendant knowingly engaged in distribution.” 3 In turn,

“the defendant ‘knowingly engage[s] in distribution’ if the defendant (A)

knowingly committed the distribution, (B) aided, abetted, counseled, commanded,

induced, procured, or willfully caused the distribution, or (C) conspired to

distribute.” USSG § 2G2.2 cmt. n.2 (2016).


       3
          Under the 2015 version of the guidelines in effect at Monetti’s sentencing,
§ 2G2.2(b)(3)(F) provided for a two-level increase for simple “distribution.” USSG
§ 2G2.2(b)(3)(F) (2015). The 2016 amendment to § 2G2.2(b)(3)(F) added a requirement that the
defendant know about the distribution. See USSG Suppl. to App. C, Amend. 801 (2016). Thus,
if the 2016 version of the enhancement applies to a defendant, the 2015 version should apply as
well.
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       The district court made two findings to support its determination that

Monetti “knowingly engaged in distribution”: (1) Monetti changed the default

sharing settings in the Ares program, which showed he understood that files in the

shared folder could be downloaded by other users; and (2) Monetti kept the Ares

program running on his computer, which allowed other users to download child

pornography from his shared folder. Monetti also does not dispute that he had

child pornography in his shared folder. For example, it is not disputed that Agent

Devine downloaded child pornography on four or five occasions from the folder.

This evidence shows Monetti used Ares even though he knew the child

pornography in his shared folder could be distributed through the program. The

district court therefore did not err in finding Monetti knowingly distributed child

pornography. 4 Cf. United States v. Honeycutt, 8 F.3d 785, 787 (11th Cir. 1993)

(defining knowingly in another section of the guidelines as when “a person is

aware of a high probability [of a fact’s] existence, unless he actually believes that it

does not exist”).

                                             B.

       Monetti next argues his 144-month prison sentence was substantively

unreasonable. We review whether the district court’s sentence was substantively


       4
         This holding necessarily moots Monetti’s argument that he should receive a two-level
decrease under § 2.G2.2(b)(1). This decrease is reserved for defendants whose crimes are
limited to receipt or solicitation of child pornography. USSG § 2.G2.2(b)(1).
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reasonable for an abuse of discretion. United States v. Irey, 612 F.3d 1160, 1188

(11th Cir. 2010) (en banc). A district court “imposes a substantively unreasonable

sentence only when it (1) fails to afford consideration to relevant factors that were

due significant weight, (2) gives significant weight to an improper or irrelevant

factor, or (3) commits a clear error of judgment in considering the proper factors.”

United States v. Rosales-Bruno, 789 F.3d 1249, 1256 (11th Cir. 2015) (quotation

omitted). 18 U.S.C. § 3553(a) sets out the factors that a district court must

consider at sentencing. Irey, 612 F.3d at 1189.

      Monetti argues the district court failed to properly weigh his personal history

and characteristics. See 18 U.S.C. § 3553(a)(1). He says the court should have

given more weight to the evidence he presented of his low risk of recidivism.

Monetti argues that instead, “the district court placed exclusive and unreasonable

weight on a single factor—the ‘egregious’ nature of certain images downloaded.”

      Contrary to Monetti’s argument, the record shows the district court

considered all the § 3553(a) factors. As for his personal history and characteristics,

the court mentioned Monetti’s lack of criminal history, and explicitly granted him

a downward variance from his guideline range based in part on the evidence that

he had a low risk of recidivism. On this record, we cannot say the district court

abused its discretion in sentencing Monetti. See Rosales-Bruno, 789 F.3d at 1254–

55. Monetti’s sentence is affirmed.

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AFFIRMED.




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