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United States v. Jack Vanlaar , 581 F. App'x 168 ( 2014 )


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  •                              UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 13-4707
    UNITED STATES OF AMERICA,
    Plaintiff – Appellee,
    v.
    JACK STEVEN VANLAAR,
    Defendant - Appellant.
    Appeal from the United States District Court for the Middle
    District of North Carolina, at Greensboro. Catherine C. Eagles,
    District Judge. (1:13-cr-00119-CCE-1)
    Submitted:   July 29, 2014                 Decided:   August 4, 2014
    Before SHEDD and THACKER, Circuit Judges, and HAMILTON, Senior
    Circuit Judge.
    Affirmed by unpublished per curiam opinion.
    George E. Crump, III, LAW OFFICE OF GEORGE E. CRUMP, III,
    Rockingham, North Carolina, for Appellant. Ripley Rand, United
    States Attorney, Anand P. Ramaswamy, Assistant United States
    Attorney, Greensboro, North Carolina, for Appellee.
    Unpublished opinions are not binding precedent in this circuit.
    PER CURIAM:
    Jack Steven Vanlaar pled guilty, pursuant to a written
    plea     agreement,        to     distribution           of    child        pornography,     in
    violation of 18 U.S.C. §§ 2252A(a)(2)(A), (b)(1) (2012).                                     He
    received a 190-month sentence.                      On appeal, Vanlaar argues that
    the district court erred in applying a five-level enhancement
    for “distribution for the receipt, or expectation of receipt, of
    a   thing    of     value,       but     not    for      pecuniary     gain”       under    U.S.
    Sentencing Guidelines Manual § 2G2.2(b)(3)(B) (2012).                                  Finding
    no error, we affirm the sentence.
    We      review        a     sentence        for     reasonableness,           first
    ensuring      that       there     is     no    “significant          procedural       error,”
    including improper calculation of the Guidelines range.                                Gall v.
    United      States,       
    552 U.S. 38
    ,       51    (2007).           When    evaluating
    Guidelines calculations, we review the district court’s factual
    findings     for     clear       error    and   its      legal      conclusions      de    novo.
    United States v. Strieper, 
    666 F.3d 288
    , 292 (4th Cir. 2012).
    The         Guidelines        provide          multiple         categories       of
    distribution enhancements under USSG § 2G2.2(b)(3).                                Among these
    categories,        “distribution         for    the      receipt,      or    expectation      of
    receipt,     of    a     thing     of    value,       but     not   for     pecuniary      gain”
    qualifies          for       a      five-level            enhancement          under        USSG
    2
    § 2G2.2(b)(3)(B), 1 while distribution of child pornography that
    is not in exchange for money or other things of value and that
    is not to minors qualifies for a two-level enhancement under
    USSG § 2G2.2(b)(3)(F). 2
    The     Guidelines      define   “distribution”           as   “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.”      USSG    § 2G2.2     cmt.    n.1.        The   definition        “includes
    posting material involving the sexual exploitation of a minor on
    a website for public viewing.”            Id.      We have held that use of a
    peer-to-peer       file-sharing      program       qualifies     as     distribution
    under § (F).        United States v. Layton, 
    564 F.3d 330
    , 335 (4th
    Cir. 2009).        We reasoned that, by creating and using a shared
    folder     with    knowledge     that    others      could     access      the    child
    pornography files within, “a defendant commits an act ‘related
    to the transfer of material involving the sexual exploitation of
    a minor.’”       
    Id.
     (quoting USSG § 2G2.2 cmt. n.1).
    The Guidelines define “distribution for the receipt,
    or expectation of receipt, of a thing of value, but not for
    pecuniary    gain”    as     “any    transaction,      including       bartering       or
    1
    Hereafter referred to as “§ (B).”
    2
    Hereafter referred to as “§ (F).”
    3
    other      in-kind       transaction      that    is   conducted     for    a    thing    of
    value, but not for profit.”                      USSG § 2G2.2 cmt. n.1.             As an
    example, the Guidelines explain that, “in a case involving the
    bartering of child pornographic material, the ‘thing of value’
    is   the    child    pornographic         material     received      in    exchange      for
    other child pornographic material bartered in consideration for
    the material received.”             Id.
    Vanlaar       does   not    dispute      that   he    distributed        child
    pornography under USSG § 2G2.2(b)(3).                    He argues, however, that
    his use of a file-sharing program should have subjected him only
    to the two-level enhancement under § (F), not the five-level
    enhancement under § (B), absent specific evidence in the record
    demonstrating that he shared child pornography files for the
    purpose      of    receiving       something      in   return.       Vanlaar’s         § (B)
    enhancement was based on his use of GigaTribe: a “peer-to-peer”
    file sharing system platform on which users or friends of each
    other can download and/or share part or all of their files on
    their computer depending on the choices they make.
    The    Government        submitted       evidence     in     the   form     of
    GigaTribe         chat     logs    and     presented      the      testimony      of     the
    investigating case agent and a computer forensics expert.                                 In
    United States v. McManus, 
    734 F.3d 315
     (4th Cir. 2013), the
    court addressed the five-level enhancement challenged here.                              The
    district court did not have the benefit of McManus when it made
    4
    its sentencing decision as it was decided several weeks after
    the district court sentenced Vanlaar.               We held in McManus that a
    § (B)     enhancement       requires         a     showing       of         “sufficient
    individualized evidence of . . . intent to distribute . . .
    pornographic materials in expectation of receipt of a thing of
    value.”       Id.    at    322.        McManus      addressed         the     GigaTribe
    peer-to-peer file-sharing network also at issue here.                             However,
    in McManus, we concluded that there was insufficient evidence to
    support the enhancement because the government relied on McManus
    sharing    his   folders     only      and   did    not     present         any       actual
    individualized      evidence      to   demonstrate        intent      to     distribute
    pornographic materials in expectation of receipt of a thing of
    value.    Id. at 322.
    We   suggested        in   McManus      what     evidence        might       be
    sufficient to support the § B enhancement.                     The government may
    demonstrate      individualized        intent      by   showing       that        a    user
    “distributed his files to any user as a barter or trade, that
    Gigatribe enforces a rule that friends must make files available
    to each other, or that a strong custom has arisen within the
    Gigatribe community to that same effect.”                  Id. at 322.            We noted
    that if users communicate with one another to gain access to
    files, “then      the   Government      should     be   able    to    gather          actual
    individualized evidence to satisfy the second element of § (B)
    5
    by   seizing     defendants’      chat   logs        with   undercover     agents     and
    other users.”       Id.
    The chat logs here demonstrate that Vanlaar shared his
    password to his shared folders with the expectation that the
    other GigaTribe user would reciprocate and provide a password so
    that Vanlaar could view and download the other user’s files.
    There are several sequences in the chat logs demonstrating that
    Vanlaar intended to share with certain individuals only if he
    would receive files in return.                  The way the GigaTribe system
    works, as the district court noted, one user must first provide
    a    password.      The    system   does       not    appear    to    be   set   up   for
    simultaneous or enforced reciprocal sharing.                         It was Vanlaar’s
    practice to ask for a password in return when he was the first
    to share access.          The chat logs also demonstrate that he would
    not provide his password to another user when the first user did
    not have any files that he wanted to view.
    The facts in the record indicate that, at the very
    least,    Vanlaar    had    the   expectation         that     in    distributing     his
    child pornography files through GigaTribe that other users would
    return the favor and supply him with access to their files as
    well.     In light of this and in consideration of McManus, we
    conclude that the district court did not clearly err in finding
    that Vanlaar possessed the requisite expectation necessary for
    applying the § (B) enhancement.
    6
    Accordingly,     we   affirm   Vanlaar’s       sentence.       We
    dispense   with     oral   argument   because     the    facts   and   legal
    contentions   are   adequately   presented   in    the   materials     before
    this court and argument would not aid the decisional process.
    AFFIRMED
    7
    

Document Info

Docket Number: 13-4707

Citation Numbers: 581 F. App'x 168

Judges: Shedd, Thacker, Hamilton

Filed Date: 8/4/2014

Precedential Status: Non-Precedential

Modified Date: 11/6/2024