                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 14a0886n.06

                                        Case No. 14-1380
                                                                                        FILED
                                                                                  Nov 25, 2014
                                                                              DEBORAH S. HUNT, Clerk
                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                              )
                                                       )
       Plaintiff-Appellee,                             )
                                                       )        ON APPEAL FROM THE
v.                                                     )        UNITED STATES DISTRICT
                                                       )        COURT FOR THE WESTERN
CHARLES PAUL SMITH,                                    )        DISTRICT OF MICHIGAN
                                                       )
       Defendant-Appellant.                            )                  OPINION
                                                       )

BEFORE: SILER, SUTTON and McKEAGUE, Circuit Judges.

       McKEAGUE, Circuit Judge. Defendant Charles Paul Smith pled guilty to one count of

receiving child pornography, in violation of 18 U.S.C. § 2252(a)(2)(A), and was sentenced to a

prison term of 120 months. Even though the sentence represents a 90-month downward variance

from the low end of the applicable Guidelines range, defendant contends the Guidelines range

calculated by the district court was inflated by an erroneous enhancement, rendering the sentence

procedurally unreasonable. Had the enhancement not been applied, the applicable Guidelines

range would have been 151 to 188 months, instead of 210 to 240 months. Reviewing the

judgment for abuse of discretion, we find no error.

       The presentence report prepared by the Probation Department recommended calculating

Smith’s total offense level to be 37 and his criminal history category to be I, yielding an advisory

Guidelines range of 210 to 240 months. This total offense level included a five-level increase
Case No. 14-1380
United States v. Charles Smith

under U.S.S.G. § 2G2.2(b)(3)(B) because “the offense involved . . . [d]istribution for the receipt,

or expectation of receipt, of a thing of value, but not for pecuniary gain.” Smith objected to the

enhancement. He acknowledged that his admitted offense conduct involved use of a file-sharing

program that constituted “distribution,” justifying a two-level increase under U.S.S.G.

§ 2G2.2(b)(3)(F). He argued, however, that his use of a file-sharing program, without more, is

insufficient to show “receipt, or expectation of receipt, of a thing of value.” The district court

overruled the objection. The court agreed with Smith that his use of a peer-to-peer file-sharing

program did not, in itself, justify automatic application of the enhancement. However, with

reference to ¶¶ 32 and 34 of the presentence report—describing Smith’s admitted long-term use

of the file-sharing program to access child pornography for sexual arousal—the court found that

Smith shared his files in the expectation of receiving something of value to him, i.e., other child

pornography files.

       We review Smith’s procedural-unreasonableness challenge for abuse of discretion. Gall

v. United States, 552 U.S. 38, 46 (2007). A sentencing court will be found to have abused its

discretion and imposed a procedurally unreasonable sentence if it miscalculated the applicable

Guidelines range, failed to consider the § 3553(a) factors, or based the sentence on clearly

erroneous facts. United States v. Adkins, 729 F.3d 559, 563 (6th Cir. 2013). Sentencing facts are

to be found by a preponderance of the evidence. United States v. Ross, 703 F.3d 856, 884 (6th

Cir. 2012).

       Smith contends the district court miscalculated the Guidelines range based on the

erroneous finding that he distributed child pornography in expectation of receiving other child

pornography. He argues the evidence of his expectation of receiving other child pornography is

non-existent and that the enhancement was applied solely because he used a file-sharing


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Case No. 14-1380
United States v. Charles Smith

program. This kind of per se application of the enhancement, Smith argues, is contrary to Sixth

Circuit law.

          In support, he cites United States v. Emmons, 524 F. App’x 995 (6th Cir. 2013), where,

however, the § 2G2.2(b)(3)(B) enhancement was upheld. We observed that “[t]he enhancement

does not apply merely because a defendant used a file-sharing program, but extensive use of the

program resulting in the possession of several hundred images will weigh in favor of the

enhancement.” Id. at 999 (citing United States v. Hardin, 437 F. App’x 469, 474 (6th Cir.

2011)).     In Hardin, as Smith notes, we agreed with the Tenth Circuit that “the five-level

enhancement does not automatically apply simply because Appellant used a file-sharing

program.” Hardin, 437 F. App’x at 474 (citing United States v. Geiner, 498 F.3d 1104, 1111

(10th Cir. 2007)). Yet, observing that the enhancement must be “decided on a case-by-case

basis,” we upheld the enhancement in Hardin, too, holding that the defendant’s “sophisticated

and extensive use” of the program was sufficient to sustain the “expectation” finding. Id.

          Entirely consistent with these rulings is our more recent decision in United States v.

Mabee, 765 F.3d 666 (6th Cir. 2014). In determining the appropriateness of the five-level

enhancement, we held the court must “examine whether there is evidence, direct or

circumstantial, that the defendant reasonably believed that he would receive something of value

by making his child pornography files available for distribution through a peer-to-peer network.”

Id. at 674 (quoting United States v. Binney, 562 F. App’x 376, 379 (6th Cir. 2014) (internal

alterations and quotation marks omitted)). In Mabee, too, we upheld the enhancement, finding

no clear error in the sentencing court’s reliance on a circumstantial record not unlike the facts

here relied on by the district court. See also United States v. Miezin, --- F. App’x --- , 2014 WL

5288131 (6th Cir. Oct. 15, 2014) (same).


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United States v. Charles Smith

       Smith’s sentencing is in line with the above Sixth Circuit authorities. The district court

did not improperly apply the enhancement automatically just because Smith used a file-sharing

program. Rather, the court considered circumstantial evidence of Smith’s extensive and long-

term use of the file-sharing program.     The determination that the factual premise for the

enhancement was established by a preponderance of the evidence is not clearly erroneous. We

find no abuse of discretion. Quite to the contrary, we note that the court ameliorated the harsh

impact of the enhancement by granting a substantial downward variance, to which the

government has not objected.

       The judgment is AFFIRMED.




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