              United States Court of Appeals
                        For the Eighth Circuit
                    ___________________________

                            No. 14-2857
                    ___________________________

                         United States of America

                    lllllllllllllllllllll Plaintiff - Appellee

                                       v.

                            Arleigh Joe Esqueda

                  lllllllllllllllllllll Defendant - Appellant
                                  ____________

                 Appeal from United States District Court
              for the Southern District of Iowa - Des Moines
                              ____________

                         Submitted: March 9, 2015
                           Filed: April 9, 2015
                             [Unpublished]
                             ____________

Before WOLLMAN, BEAM, and COLLOTON, Circuit Judges.
                          ____________

PER CURIAM.
      Arleigh Joe Esqueda pleaded guilty to one count of possession of child
pornography, in violation of 18 U.S.C. § 2252(a)(4)(B). Esqueda appeals the district
court’s1 imposition of a sentence of 168 months’ imprisonment. We affirm.

      Esqueda contends that the district court erroneously applied the United States
Sentencing Guidelines (U.S.S.G. or Guidelines) when it increased his base offense
level by 5 under § 2G2.2(b)(3)(B). In reviewing the district court’s advisory
Guidelines calculation, we review its factual findings for clear error and its
application of the Guidelines de novo. United States v. Lynch, 757 F.3d 780, 782
(8th Cir. 2014).

        The Guidelines provide for an increase in the base offense level when the
offense—in this case, possession of child pornography—also involved distribution.
The Guidelines specify a 5-level enhancement if the offense involved “[d]istribution
for the receipt, or expectation of receipt, of a thing of value, but not for pecuniary
gain,” U.S.S.G. § 2G2.2(b)(3)(B), which means “any transaction, including bartering
or other in-kind transaction, that is conducted for a thing of value, but not for profit,”
id. § 2G2.2 cmt. n.1. The 5-level enhancement thus “applies to a defendant who
downloads and shares child[-]pornography files via an internet peer-to-peer file-
sharing network, as these networks exist . . . for users to share, swap, barter, or trade
files [among] one another.” United States v. Griffin, 482 F.3d 1008, 1013 (8th Cir.
2007). The 5-level enhancement, however, does not apply automatically merely
because the defendant installed file-sharing software; instead, the district court must
decide on a case-by-case basis whether the defendant qualifies for the enhancement.
United States v. Ultsch, 578 F.3d 827, 830 (8th Cir. 2009). The government bears the
burden of proving that the defendant expected to receive a thing of value through his
use of the file-sharing program. Id. The government can meet this burden either


      1
       The Honorable James E. Gritzner, then Chief Judge, United States District
Court for the Southern District of Iowa.

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through direct evidence—“such as an admission by the defendant that he knew he
was using a file-sharing network, and could download files from others who could
download files from him”—or through indirect or circumstantial evidence, “such as
the defendant’s technical sophistication in computers.” United States v. Bastian, 603
F.3d 460, 466 (8th Cir. 2010). Absent concrete evidence of ignorance, “a fact-finder
may reasonably infer,” through circumstantial evidence, “that the defendant
knowingly employed a file[-]sharing program for its intended purpose,” United States
v. Dodd, 598 F.3d 449, 452, 452 n.2 (8th Cir. 2010), i.e., to “share, swap, barter, or
trade files,” Griffin, 482 F.3d at 1013. See also United States v. Dolehide, 663 F.3d
343, 347-48 (8th Cir. 2011) (applying this rule in the context of § 2G2.2(b)(3)(B)’s
5-level enhancement).

       Esqueda first argues that we should abandon our former construction of
§ 2G2.2(b)(3)(B) and should adopt instead the reasoning set forth in the concurring
opinion in Bastian, 603 F.3d at 467-68 (Colloton, J.). But our panel is without power
to overrule another panel’s earlier decision. Jackson v. Ault, 452 F.3d 734, 736 (8th
Cir. 2006). We therefore are bound to apply the law of the Eighth Circuit as it exists
at present.

       Esqueda also argues that even under the law of this Circuit as it currently
stands, the district court failed to perform the required case-by-case analysis to ensure
that the government had met its burden of establishing that Esqueda shared files in
expectation of receipt of a thing of value. See, e.g., United States v. Durham, 618
F.3d 921, 926-27, 931 (8th Cir. 2010) (emphasizing that the application of a
distribution enhancement must be determined on a case-by-case basis). The district
court stated, however, that it was making its decision based on its review of the
record. The Presentence Investigation Report, which the district court adopted as its
factual findings, stated that Esqueda had personally installed the file-sharing program,
that he had described his knowledge of computers as “advanced,” that he had his own
webpage, that he was skilled at computer programming and repair, that he was in

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possession of 351 images and 77 videos depicting child pornography buried deep in
layers of folders on his computer, and that he had been downloading child-
pornography files since at least December 2008. Moreover, law-enforcement officers
were able to download three child-pornography files from Esqueda’s computer
through a peer-to-peer file-sharing network. The only evidence Esqueda offered to
rebut the government’s circumstantial evidence was a statement made to a law-
enforcement agent that he did not share or trade files. In light of our precedent,
however, the district court’s decision to disbelieve Esqueda’s statement to law
enforcement, and its conclusion that Esqueda had not made a sufficiently strong
showing to rebut the government’s circumstantial evidence, was not clearly
erroneous. See Lynch, 757 F.3d at 782 (holding that, given evidence that the
defendant actually shared files with law enforcement, was computer savvy, and
personally installed the file-sharing programs, the district court did not clearly err in
applying the 5-level enhancement, despite the defendant’s statements during a police
interview suggesting that he lacked knowledge that he was sharing files).

      Accordingly, we affirm the sentence and the district court’s application of the
5-level enhancement to calculate the Guidelines range.
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