     Case: 13-40877      Document: 00512744144         Page: 1    Date Filed: 08/25/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                            United States Court of Appeals

                                    No. 13-40877
                                                                                     Fifth Circuit

                                                                                   FILED
                                  Summary Calendar                           August 25, 2014
                                                                              Lyle W. Cayce
UNITED STATES OF AMERICA,                                                          Clerk


                                                 Plaintiff-Appellee

v.

JOSE ALANIZ-ALLEN,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 7:12-CR-2019


Before KING, JOLLY, and PRADO, Circuit Judges.
PER CURIAM: *
       Jose Alaniz-Allen (Alaniz) appeals the 225-month sentence imposed on
his guilty plea conviction for receiving child pornography.               See 18 U.S.C.
§§ 2252A(a)(2)(A) and (b)(1), 2256. He contends that the district court erred
by enhancing his base offense level by five levels under U.S.S.G.
§ 2G2.2(b)(3)(B) and by imposing written special conditions of supervised
release that are more onerous than those pronounced orally at sentencing.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                 No. 13-40877

      We conclude that the district court did not err in applying a five-level
enhancement under § 2G2.2(b)(3)(B). See United States v. Rodriguez-Mesa,
443 F.3d 397, 401 (5th Cir. 2006). Although Alaniz contends that he did not
knowingly barter in pornographic images, we have upheld § 2G2.2(b)(3)(B)
enhancements in cases presenting facts similar to those in the instant case.
See United States v. Desadier, 495 F. App’x 501, 503 (5th Cir. 2012), cert.
denied, 133 S. Ct. 1649 (2013); United States v. Flores, 540 F. App’x 405, 405
(5th Cir. 2013); United States v. Onken, 440 F. App’x 304, 305 (5th Cir. 2011);
United States v. Moore, 328 F. App’x 308, 309 (5th Cir. 2009). In those cases,
we held that defendants who, like Alaniz, shared child pornography on peer-
to-peer networks properly received § 2G2.2(b)(3)(B) enhancements because
their actions evidenced an interest in sharing and receiving child pornography.
While those cases do not bind us, we are persuaded by their reasoning. See
Ballard v. Burton, 444 F.3d 391, 401 & n.7 (5th Cir. 2006); see also United
States v. Richardson, 713 F.3d 232, 233-34 (5th Cir. 2013) (holding that peer-
to-peer file-sharing programs “incentivize the sharing of files”).
      Alaniz is correct, however, in his contention that the district court
abused its discretion when it broadened special conditions of supervised
release. See Koon v. United States, 518 U.S. 81, 100 (1996); United States v.
Bigelow, 462 F.3d 378, 381-83 (5th Cir. 2006). The district court broadened
the orally pronounced special condition of no dating or cohabitation with
minors to a condition of no dating or cohabitation with anyone who has minor
children. Additionally, the district court broadened the orally pronounced
special condition of no possession of nude or sexually suggestive photographs
of children to a condition of no possession of all sexually oriented or sexually
stimulating materials, including visual, auditory, telephonic, or electronic
media, computer programs or services, together with a prohibition against



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                                  No. 13-40877

frequenting any place where such material or entertainment is the primary
source of business. In doing so, the district court impermissibly modified the
special   conditions,   thereby   creating   a   conflict    between    the   oral
pronouncements and the written judgment. See United States v. Mudd, 685
F.3d 473, 480 (5th Cir. 2012). Consequently, we order a limited remand and
instruct the district court to modify, in a manner consistent with this opinion,
the special conditions in the written judgment in order to have them conform
to the special conditions pronounced orally at sentencing.
      CONVICTION         AFFIRMED;     SENTENCE        VACATED         IN   PART;
REMANDED WITH INSTRUCTIONS.




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