     Case: 10-51047     Document: 00511709547         Page: 1     Date Filed: 12/29/2011




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

                                                                            FILED
                                                                        December 29, 2011
                                     No. 10-51047
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

RYAN C. NIELSON,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 6:10-CR-16-1


Before WIENER, GARZA, and CLEMENT, Circuit Judges.
PER CURIAM:*
        Defendant-Appellant Ryan C. Nielson was convicted of possession of child
pornography in violation of 18 U.S.C. §§ 2252A(a)(5)(B) and (b)(2) and
2256(8)(A), for which he was sentenced to 104 months of imprisonment and five
years of supervised release. He contends that the district court erred by
determining that he distributed child pornography for purposes of the
enhancement in U.S.S.G. § 2G2.2(b)(3)(F).



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 10-51047

      The issues that Nielson raises on appeal were not raised in the district
court. In addition, any error might have been invited. In an abundance of
caution, however, we will review this claim of error for plain error. See United
States v. Fernandez-Cusco, 447 F.3d 382, 384 (5th Cir. 2006); United States v.
Cabral-Castillo, 35 F.3d 182, 188-89 (5th Cir. 1994). To show plain error,
Nielson must show that the error was clear or obvious and affects his substantial
rights. Puckett v. United States, 556 U.S. 129, 129 S. Ct. 1423, 1429 (2009). If
he makes such a showing, we have the discretion to correct the error but only if
it “‘seriously affect[s] the fairness, integrity, or public reputation of judicial
proceedings.’” Id. (alteration in original) (quoting United States v. Olano, 507
U.S. 725, 736 (1993)).
      Sentences     are   reviewed   for       procedural    error   and   substantive
reasonableness. Gall v. United States, 552 U.S. 38, 51 (2007). The district court
commits a significant procedural error by improperly calculating the guidelines
range. Id.
      We review the district court’s interpretation or application of the
Guidelines de novo and its factual findings for clear error. United States v.
Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008). A finding of fact is not
clearly erroneous if it is plausible in light of the entire record. Id.
      The government has the burden of proving by a preponderance of the
evidence the facts that support a sentencing enhancement. United States v.
Rodriguez, 523 F.3d 519, 524 (5th Cir. 2008). A preponderance of the evidence
means only that it is more likely than not that a fact is true. United States v.
Barksdale-Contreras, 972 F.2d 111, 115 (5th Cir. 1992).
      A defendant may receive a two-level increase in offense level if his offense
involved distribution, which is defined 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

                                           2
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                                   No. 10-51047

involving the sexual exploitation of a minor on a website for public viewing . . . .”
§ 2G2.2(b)(3)(F) & cmt. n.1. The enhancement was thus applicable in this case
if the government proved by a preponderance of the evidence that a torrent
containing child pornography was uploaded from Nielson’s computer to the file-
sharing network.
      A torrent is a means of internet-based file sharing in which each user
participating in the file-sharing network simultaneously uploads and downloads
pieces of the shared files, allowing for the most rapid and efficient distribution
of the files to the participating users. The evidence at the sentencing hearing
showed that half of the torrents that Nielson downloaded to his computer
contained child pornography, that a torrent is automatically uploaded as it is
downloaded, that torrents were uploaded from Nielson’s computer, and that it
was customary in the file-sharing community to permit torrents to be shared.
There was some question as to whether the settings on Nielson’s computer at the
time it was seized would have prevented a torrent from being uploaded, and
Nielson specifically stated that he changed the default settings to prevent his
child pornography torrents from being uploaded. At best, however, Nielson’s
unsworn statement created a credibility question for the district court. See
United States v. Alfaro, 919 F.2d 962, 967 (5th Cir. 1990). The district court
implicitly accepted the facts as presented by the government’s expert and
concluded that it was more likely than not that a torrent containing child
pornography was uploaded to the file-sharing network. Such a resolution was
plausible in light of the record as a whole and, accordingly, did not constitute
clear error.
      There was no error, plain or otherwise, in applying the enhancement in
§ 2G2.2(b)(3)(F). The judgment of the district court is AFFIRMED.




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