                                                         [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT           FILED
                     ________________________ U.S. COURT  OF APPEALS
                                                        ELEVENTH CIRCUIT
                                                           NOV 23, 2010
                            No. 10-10618                    JOHN LEY
                        Non-Argument Calendar                 CLERK
                      ________________________

               D.C. Docket No. 1:09-cr-00002-SPM-AK-1

UNITED STATES OF AMERICA,


                                                            Plaintiff-Appellee,

                                  versus

MICAH C. PEACOCK,

                                                         Defendant-Appellant.

                     __________________________

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

                           (November 23, 2010)

Before BLACK, PRYOR and ANDERSON, Circuit Judges.

PER CURIAM:
       Micah C. Peacock appeals his conviction for possession of child

pornography, 18 U.S.C. §§ 2252A(a)(5)(B), (b)(2), and his sentence of

imprisonment for 150 months for that crime and for receiving or distributing child

pornography, id. §§ 2252A(a)(2)(A), (b)(1). Peacock argues that the district court

erred by denying his motion to dismiss his conviction for possessing child

pornography and in calculating his sentence based on a finding that Peacock

distributed the pornographic material. We affirm.

       The evidence at trial established that Peacock downloaded to and distributed

from his computer files containing images and videos of child pornography by

using LimeWire, which is a software program that allows its users to share files.

When a user installs LimeWire, his user agreement discloses that all files

downloaded to that computer will be shared automatically. After installation,

LimeWire includes in its directory and makes accessible to its users all files on

computers connected to the network, unless a user changes the default setting or

restricts access to a specific file.

       April Joyner, a detective in the Alachua County Sheriff’s Office, discovered

Peacock’s files while searching Limewire for users who were sharing files

containing child pornography. Detective Joyner observed that Peacock had

available ten files of child pornography, and she downloaded three of those files.


                                          2
The detective later obtained a warrant to search Peacock’s apartment. During the

search, an officer discovered on Peacock’s computer several videos of child

pornography and seized the hard drive.

      Detective Charles Snipes examined Peacock’s hard drive and discovered the

three files that had been downloaded by Detective Joyner, as well as the seven

other files available from Peacock on LimeWire. A further examination revealed

that Peacock had downloaded 65 images and 28 videos containing child

pornography between July and December 2008 that were available to any user of

LimeWire. Date stamps on the files established that Peacock downloaded to his

computer 36 images and 10 videos of child pornography between July and

October 22, 2008, and Peacock downloaded an additional 29 images and 18

videos of child pornography between October 23 and December 4, 2008. Through

LimeWire, Peacock made available “100 percent of his bandwidth to user

uploads,” but he restricted access to all but “a handful” of his MP3 music files.

      At trial, the government introduced testimony of Detectives Joyner and

Snipes about LimeWire and their investigation and testimony of Peacock’s two

roommates about his penchant for pornography. Peacock testified that he had

closed any images he received of young girls while searching for adult

pornography, and he intimated that his roommates had downloaded the child


                                          3
pornography onto his computer while he had been at work. A jury found Peacock

guilty of receiving or distributing child pornography between October 23 and

December 4, 2008, and of possessing child pornography on December 4, 2008.

      Peacock moved to dismiss his conviction for possession. Peacock argued

that his convictions for distribution and possession violated the Double Jeopardy

Clause. The district court denied Peacock’s motion based on our decision in

United States v. Bobb, 577 F.3d 1366, 1375 (11th Cir. 2009), in which we held

that the defendant could be sentenced to multiple punishments for receiving and

possessing different images of child pornography on different dates. The district

court found that “[s]ufficient evidence was presented for the Jury to find that

[Peacock] had committed two separate offenses on two distinct dates.”

      The presentence investigation report listed a base offense level of 22, U.S.

Sentencing Guidelines Manual § 2G2.2(b)(3)(F) (2008), and increased that level

by 17 points. The report recommended a two-level enhancement because

Peacock’s offense involved the distribution of child pornography, id. §

2G2.2(b)(3)(F). The report stated that Peacock faced maximum statutory

sentences of 240 months for distributing child pornography and 120 months for

possessing the illegal material.




                                          4
      Peacock objected to the presentence report on two related grounds. First,

Peacock objected to the two-level enhancement of his sentence for distributing

child pornography. Id. § 2G2.2(b)(3)(F). Peacock argued that he did not

distribute child pornography because the illegal materials were shared

automatically and he “[might] not have even known of it.” Second, Peacock

objected to the failure to reduce his offense level by two levels. Peacock argued

that his “conduct was limited to the receipt or solicitation of material involving the

sexual exploitation of a minor” and he “did not intend to traffic in, or distribute,

such material,” id. § 2G2.2. The district court overruled Peacock’s objections.

      Peacock argues that his conviction for possession of child pornography was

based on the same misconduct as his convictions for distribution of child

pornography, but we disagree. “[W]here the same act or transaction constitutes a

violation of two distinct statutory provisions, the test to be applied to determine

whether there are two offenses or only one, is whether each provision requires

proof of a fact which the other does not.” Blockburger v. United States, 284 U.S.

299, 304, 52 S. Ct. 180, 182 (1932). Peacock was convicted of possessing and

receiving or distributing different images and videos of child pornography on

different dates. See Bobb, 577 F.3d at 1375. The district court did not err by

denying Peacock’s motion to dismiss.


                                           5
      Peacock also argues that the district court erred in its application of section

2G2.2 based on its finding that Peacock distributed child pornography, but again

we disagree. If a defendant distributes child pornography, he is subject to a two-

level enhancement, U.S.S.G. § 2G2.2(b)(3)(F), and, unless the defendant proves

he did not intend to distribute the material, he is ineligible for a two-level

reduction of his base offense level, id. § 2G2.2(b)(1). A defendant is guilty of

distribution whether he possesses for publication or actually publishes child

pornography:

             “Distribution” means 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 . . . .

Id. § 2G2.2 cmt. n.1.

      The district court was entitled to find that Peacock distributed child

pornography and that he failed to prove he lacked the intent to distribute that

material. The record establishes that Peacock downloaded to his computer images

and videos of child pornography that he made fully accessible for other users of

LimeWire and some of those materials were transferred on at least one occasion.

Peacock argues that he did not “take[] any positive step to distribute any images,”

but Peacock understood that his files would be shared and he restricted access to


                                           6
some of his files, but not those files containing child pornography. The district

court did not err in applying section 2G2.2.

      We AFFIRM Peacock’s convictions and sentences.




                                         7
