     Case: 18-20230      Document: 00514807037        Page: 1     Date Filed: 01/24/2019




          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT

                                                                      United States Court of Appeals

                                   No. 18-20230
                                                                               Fifth Circuit

                                                                             FILED
                                 Summary Calendar                      January 24, 2019
                                                                        Lyle W. Cayce
                                                                             Clerk


UNITED STATES OF AMERICA,

                                                Plaintiff−Appellee,

versus

ERIC FURZLAND,

                                                Defendant−Appellant.




                   Appeal from the United States District Court
                        for the Southern District of Texas
                                No. 4:17-CR-292-1




Before SMITH, WIENER, and WILLETT, Circuit Judges.
PER CURIAM: *

      Eric Furzland appeals the 288-month sentence imposed for distributing,



      * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in
5TH CIR. R. 47.5.4.
    Case: 18-20230    Document: 00514807037     Page: 2   Date Filed: 01/24/2019


                                 No. 18-20230

receiving, and possessing child pornography. Furzland maintains that the dis-
trict court incorrectly enhanced his advisory guideline range by five levels for
distributing child pornography in exchange for valuable consideration.
U.S.S.G. § 2G2.2(b)(3)(B). We review the district court’s factual findings for
clear error and its application of the sentencing guidelines de novo. United
States v. Halverson, 897 F.3d 645, 651 (5th Cir. 2018) (citing United States v.
Groce, 784 F.3d 291, 294 (5th Cir. 2014)).

      This guideline was amended in 2016 to apply if “the defendant agreed to
an exchange with another person under which the defendant knowingly dis-
tributed [child pornography] to that other person for the specific purpose of
obtaining something of valuable consideration from that other person, such as
other child pornographic material.” § 2G2.2, comment. (n.1). We require four
findings to apply this guideline: The defendant (1) agreed to an exchange with
another person, (2) knowingly distributed child pornography to that person,
(3) had the purpose of obtaining something of valuable consideration, and
(4) received valuable consideration from that person. See Halverson, 897 F.3d
at 652. The district court erred by inferring that Furzland distributed child
pornography to another person for valuable consideration merely because the
ChatStep program allows him to exchange files with other users. The district
court did not make the necessary findings under the amended guideline.

      The government has not shown that the error was harmless. See United
States v. Ibarra-Luna, 628 F.3d 712, 714, 719 (5th Cir. 2010). Accordingly, the
judgment of sentence is VACATED and REMANDED for resentencing.




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