United States v. Petersen , 426 F. App'x 852 ( 2011 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT COURT OF APPEALS
U.S.
________________________ ELEVENTH CIRCUIT
MAY 18, 2011
No. 10-14727 JOHN LEY
Non-Argument Calendar CLERK
________________________
D.C. Docket No. 3:10-cr-00046-RV-1
UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllllllllllll Plaintiff-Appellee,
versus
ADAM M. PETERSEN,
llllllllllllllllllllllllllllllllllllllll Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Florida
________________________
(May 18, 2011)
Before BARKETT, MARCUS and PRYOR, Circuit Judges.
PER CURIAM:
Adam Petersen appeals his sentence of imprisonment for 121 months
following his conditional plea of guilt for receipt of child pornography. 18
U.S.C. § 2252A(a)(2), (b)(1). Petersen argues that the district court erred in
applying the two-level enhancement for distribution of child pornography based
on his use of a peer-to-peer file-sharing network. U.S.S.G. § 2G2.2(b)(3)(F).
Petersen contends that he had inexpert knowledge about how peer-to-peer filing-
sharing worked, and there was no evidence that he understood the uploading or
“sharing” capabilities of the software he used. We affirm.
We review the interpretation of the Sentencing Guidelines de novo and any
underlying findings of fact for clear error. United States v. Zaldivar, 615 F.3d
1346, 1350 (11th Cir. 2010), cert. denied, 131 S. Ct. 959 (2011). “[F]actual
findings used to support a sentencing enhancement must be based on reliable and
specific evidence and cannot be based on speculation.” United States v. Newman,
614 F.3d 1232, 1238 (11th Cir. 2010).
Under section 2G2.2(b)(3)(F) of the Guidelines, a defendant’s base offense
level for a child pornography offense may be enhanced by two levels if it involves
“distribution,” other than distribution for pecuniary gain, for value, or to a minor.
Distribution is defined broadly as follows:
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 but does not include the mere
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solicitation of such material by a defendant.
U.S.S.G. § 2G2.2, cmt. n.1. Section 2G2.2(b)(1) provides for a two-level
reduction in the base offense level when the defendant’s conduct is limited to
receipt or solicitation, and the defendant did not intend to traffic in or distribute
child pornography.
The district court did not clearly err in finding that Petersen understood the
capabilities of the file-sharing software he used. Petersen admitted to
downloading and installing the software, he was the most computer literate person
in the household, and he preferred the Shareaza file-sharing program over other
programs because of its search capabilities. The blocking feature in Shareaza was
not enabled. Child pornography was downloaded by authorities from Petersen’s
computer in a folder that was open to share files with any computer with which it
was connected. Based on this record, the district court did not err in finding that
Petersen committed distribution within the meaning of section 2G2.2(b)(3)(F).
AFFIRMED.
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