     Case: 12-11064       Document: 00512393123         Page: 1     Date Filed: 10/01/2013




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

                                                                            FILED
                                                                          October 1, 2013
                                     No. 12-11064
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

MARCO A. FLORES,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:12-CR-97-1


Before JOLLY, DeMOSS and ELROD , Circuit Judges.
PER CURIAM:*
       Marco A. Flores appeals his 96-month sentence following his guilty-plea
conviction to one count of possession of visual depictions of a minor engaged in
sexually explicit conduct. He argues that the district court erred in applying a
five-level enhancement to his Sentencing Guidelines offense level under U.S.S.G.
§ 2G2.2(b)(3)(B) because there is insufficient evidence to show that he knowingly
distributed child pornography as required for the imposition of the
§ 2G2.2(b)(3)(B) enhancement.

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-11064     Document: 00512393123     Page: 2   Date Filed: 10/01/2013

                                  No. 12-11064

      We review the district court’s interpretation and application of the
Guidelines de novo and its factual determinations for clear error. United States
v. Rodriguez-Mesa, 443 F.3d 397, 401 (5th Cir. 2006). The undisputed evidence
shows that Flores had the necessary technological understanding of the peer-to-
peer file sharing software to use the software to obtain images of child
pornography.    The evidence also shows that he had this software on his
computer for more than a year and understood the nature of peer-to-peer file
sharing, including the limitations imposed for not sharing files. We hold that
the district court did not err in applying a five-level enhancement under
§ 2G2.2(b)(3)(B). This court has upheld the application of the enhancement in
cases presenting facts similar to those at issue here. See United States v.
Desadier, 495 F. App’x 501, 503 (5th Cir. 2012); 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). Although these cases are not binding precedent, they are persuasive.
See Ballard v. Burton, 444 F.3d 391, 401 & n.7 (5th Cir. 2006).
      The judgment of the district court is AFFIRMED.




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