United States v. Mark Tilford ( 2013 )

Case: 11-40806 Document: 00512196031 Page: 1 Date Filed: 04/03/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
April 3, 2013
No. 11-40806
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
MARK PHILLIP TILFORD,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:10-CR-1236-1
Before WIENER, ELROD, and GRAVES, Circuit Judges.
PER CURIAM:*
Mark Phillip Tilford appeals the 125-month sentence and $100,000
restitution award imposed after he pleaded guilty to one count of receipt of child
pornography. His contention that the Government was required to prove that
his conduct was the proximate cause of the losses claimed by the victim is
foreclosed. See In re Amy Unknown, 701 F. 3d 749, 759 (5th Cir. 2012), petition
for cert. filed (Jan. 31, 2013) (Nos. 12-8505 & 12-8561). Because the record
showed that the victim suffered more than $1 million in losses, the $100,000
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
Case: 11-40806 Document: 00512196031 Page: 2 Date Filed: 04/03/2013
No. 11-40806
restitution award was an error in Tilford’s favor. We affirm the award because
the Governemnt has not appealed it. See id. at 773-74 (citing Greenlaw v.
United States, 554 U.S. 237, 246 (2008)).
Tilford also contends that the district court erred by increasing his offense
level by two levels for distribution under U.S.S.G. § 2G2.2(b)(3)(F). The
Guidelines broadly define “distribution” as “any act . . . related to the transfer
of material involving the sexual exploitation of a minor.” § 2G2.2 comment.
(n.1). Tilford stipulated that he “used the LimeWire peer-to-peer file sharing
program to obtain his child pornography; that the program, upon installation,
warns users that they will be making files available to share to other users; and
that [a detective] did in fact download multiple images and/or videos of child
pornography from Mr. Tilford’s computer.” Because Tilford used a peer-to-peer
program to obtain images of child pornography and to make the images available
to others, his conduct was related to the transfer of illegal material and was
therefore distribution. See § 2G2.2, comment. (n.1).
The judgment of the district court is AFFIRMED.
2