                                                                               [DO NOT PUBLISH]

                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT           FILED
                                    ________________________ U.S. COURT OF APPEALS
                                                                                ELEVENTH CIRCUIT
                                               No. 11-10625                      OCTOBER 5, 2011
                                           Non-Argument Calendar                    JOHN LEY
                                         ________________________                    CLERK


                           D.C. Docket No. 1:10-cr-00039-SPM-GRJ-1



UNITED STATES OF AMERICA,

llllllllllllllllllllllllllllllllllllll                                             Plaintiff-Appellee,

                                                    versus

STEPHEN TODD NELSON,

                                             llllllllllllllllllllllllllllllllllllll llDefendant-Appellant.

                                     ________________________

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

                                             (October 5, 2011)

Before MARCUS, MARTIN and ANDERSON, Circuit Judges.

PER CURIAM:
      Stephen Todd Nelson appeals his total 240-month sentence after pleading

guilty to one count of receipt and distribution of child pornography, in violation of

18 U.S.C. § 2252A(a)(2) and (b)(1). On appeal, Nelson argues that: (1) the district

court improperly applied a two-level enhancement under U.S.S.G. § 2G2.2(b)(3)(F)

for distribution of child pornography, and erred in refusing to apply a two-level

reduction under U.S.S.G. § 2G2.2(b)(1); and (2) because § 2G2.2(b)(3)(F) requires

an affirmative act of distribution accompanied by intent to distribute, applying §

2G2.2(b)(3)(F) in conjunction with U.S.S.G. § 2G2.2(b)(6) constitutes impermissible

double counting. After thorough review, we affirm.

      We review the district court’s application and legal interpretations of the

Guidelines, including rejection of double counting challenges, de novo, and the

district court’s factual determinations for clear error. United States v. Zaldivar, 615

F.3d 1346, 1350 (11th Cir. 2010), cert. denied, 131 S. Ct. 959 (2011); United States

v. Dudley, 463 F.3d 1221, 1226 (11th Cir. 2006) (double counting). Arguments not

raised in the district court, however, are reviewed for plain error. See Fed.R.Crim.P.

52(b); United States v. Duncan, 400 F.3d 1297, 1301 (11th Cir. 2005). To establish

plain error, the appellant must show: (1) error, (2) that is plain, (3) that affects

substantial rights, and (4) that seriously affects the fairness, integrity, or public

reputation of judicial proceedings. United States v. McNair, 605 F.3d 1152, 1222

                                          2
(11th Cir. 2010), cert. denied, 131 S.Ct. 1600 (2011). “Before an error is subject to

correction under the plain error rule, it must be plain under controlling precedent . .

. .” United States v. Lett, 483 F.3d 782, 790 (11th Cir. 2007).

      “[F]actual findings used to support a sentencing enhancement must be based

on reliable and specific evidence and cannot be based on speculation.” United States

v. Newman, 614 F.3d 1232, 1238 (11th Cir. 2010). The government bears the burden

of proving the applicability of a Guidelines enhancement, while the defendant bears

the burden of proving the applicability of a Guidelines reduction. United States v.

Belfast, 611 F.3d 783, 823 (11th Cir. 2010), cert. denied, 131 S.Ct. 1511 (2011);

Zaldivar, 615 F.3d at 1352.

      The Supreme Court has said that “[s]olemn declarations in open court carry a

strong presumption of verity,” and accordingly there is a strong presumption that

statements made during a plea colloquy are true. Blackledge v. Allison, 431 U.S. 63,

74 (1977). Findings of fact by a sentencing court may be based on, among other

things, “facts admitted by a defendant’s plea of guilty . . . .” United States v. Wilson,

884 F.2d 1355, 1356 (11th Cir. 1989); see also United States v. Smith, 480 F.3d 1277,

1281 (11th Cir. 2007) (“when a defendant fails to object to a fact contained in the .

. . government proffer at the plea colloquy, the defendant is deemed to have admitted

the fact, which may then be used to enhance the sentence”).

                                           3
      The guideline for child pornography offenses calls for a two-level sentencing

enhancement if the defendant used a computer. U.S.S.G. § 2G2.2(b)(6). It provides

for another two-level increase if the defendant distributed child pornography.

U.S.S.G. § 2G2.2(b)(3)(F). The application notes define “distribution” as:

      any act, including possession with intent to distribute, production,
      transmission, advertisement, and transportation, related to the transfer
      of material involving the sexual exploitation of a minor. Accordingly,
      distribution includes posting material involving the sexual exploitation
      of a minor on a website for public viewing but does not include the mere
      solicitation of such material by a defendant.

U.S.S.G. § 2G2.2, comment. (n.1). Conversely, § 2G2.2(b)(1) provides for a

two-level reduction if the defendant only solicited, or sought to receive, child

pornography. U.S.S.G. § 2G2.2(b)(1). As noted above, only the latter two provisions

-- defining distribution and mere solicitation or receipt -- are directly at issue here.

      Impermissible double counting occurs “only when one part of the Guidelines

is applied to increase a defendant’s punishment on account of a kind of harm that has

already been fully accounted for by application of another part of the Guidelines.”

Dudley, 463 F.3d at 1226-27 (emphasis added). We “presume that the Sentencing

Commission intended separate guidelines sections to apply cumulatively, unless

specifically directed otherwise.” Id. at 1227 (quotation omitted).




                                           4
      First, Nelson’s challenge to the two-level distribution enhancement is factually

and legally unsupported. Here, the district court specifically found that “[b]y doing

nothing to protect the images and allowing them to remain in a shared folder,

[Nelson] distributed the images within the meaning of Section 2G2.2(b)(3)(F).” This

finding is supported by the record, which showed that Nelson admittedly used a

file-sharing network to download child pornography, stored his files in a shared

folder on the network, and allowed other users to access his files. Additionally, there

was no evidence on the record that Nelson was not aware of how the sharing program

functioned or of the distribution that resulted from its function. The district court’s

finding of distribution is further bolstered by Nelson’s admittance of distribution at

his plea colloquy. And, contrary to Nelson’s limited characterization of his colloquy

admission and challenge to the consideration thereof, the district court was entitled

to consider that in resolving his later objection to the distribution enhancement, and

it was consistent with other information in the record demonstrating distribution.

      The plain language of § 2G2.2(b)(3)(F) and the commentary interpreting it also

support the distribution enhancement. Specifically, the application notes show that

posting files on an internet site for public viewing warrants an enhancement, and

information from the officer’s investigation suggested that Nelson did that by loading,

and using, the two programs mentioned above. Moreover, while we have not

                                          5
interpreted, in a published opinion, the scope of § 2G2.2(b)(3)(F) as applied to a

defendant who used a peer-to-peer file-sharing network, the Fourth and Seventh

Circuits have affirmed application of the two-level enhancement where the defendant

used a peer-to-peer file-sharing network to download child pornography. See United

States v. Layton, 564 F.3d 330, 335 (4th Cir. 2009) (holding that use of a peer-to-peer

file-sharing program constitutes distribution for the purposes of U.S.S.G. §

2G2.2(b)(3)(F)); United States v. Carani, 492 F.3d 867, 875-76 (7th Cir. 2007)

(affirming application of enhancement where defendant made child pornography files

available through file-sharing program and knew other users were downloading the

files); cf. United States v. Shaffer, 472 F.3d 1219, 1223-24 (10th Cir. 2007) (holding

that there was sufficient evidence of distribution pursuant to 18 U.S.C. § 2252A

where the defendant freely allowed other users of a file-sharing network to access his

files and “understood that file sharing was the very purpose” of the network). The

Eighth Circuit has held more expansively that because the purpose of a file-sharing

program is distribution, “[a]bsent concrete evidence of ignorance -- evidence that is

needed because ignorance is entirely counterintuitive -- a fact-finder may reasonably

infer that the defendant knowingly employed a file sharing program for its intended

purpose.” United States v. Dodd, 598 F.3d 449, 452 (8th Cir.) (emphasis omitted),

cert. denied, 130 S.Ct. 3533 (2010).

                                          6
      In sum, the distribution finding was factually supported and in accordance with

the decisions of other circuit courts. Furthermore, because there was distribution, the

offense was not limited to receipt or solicitation sufficient to warrant application of

the § 2G2.2(b)(1) two-level reduction.

      Nor are we persuaded by Nelson’s claim that applying § 2G2.2(b)(3)(F) in

conjunction with U.S.S.G. § 2G2.2(b)(6) constitutes impermissible double counting --

an argument we review for plain error since he did not mention double counting

before the district court, either independently or in support of his distribution

enhancement. We recognize that we have not decided, in a published opinion,

whether application of § 2G2.2(b)(3)(F) and § 2G2.2(b)(6) together constitutes

impermissible double counting. Nevertheless, guideline sections are presumed to

apply cumulatively where, as here, there is no contrary direction found in the

guidelines. Moreover, other circuit courts have rejected other “double counting”

challenges, particularly where, as here, multiple images or multiple computers are

seized. See United States v. McNerney, 636 F.3d 772, 775, 780 (6th Cir. 2011)

(double counting challenge to consideration of multiple, but identical, images

rejected); United States v. Tenuto, 593 F.3d 695, 697 (7th Cir.), cert. denied, 130

S.Ct. 3427 (2010) (concluding that lower court did not rely on conduct that was

necessary to satisfy an element of the defendant’s conviction for transporting child

                                          7
pornography, and use the same conduct to enhance the defendant’s guideline range

for distribution). Thus, because an error cannot be plain unless binding precedent

from this Court or the Supreme Court establishes that proposition, there was no plain

error in the decision to enhance his offense level under both provisions.1

Accordingly, we affirm.

       AFFIRMED.




       1
        Because we find that Nelson’s double counting challenge did not constitute plain error,
we need to address the government’s argument that this challenge is waived.

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