United States v. Marco Flores , 540 F. App'x 405 ( 2013 )

Case: 12-11064 Document: 00512393123 Page: 1 Date Filed: 10/01/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 1, 2013
No. 12-11064
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
MARCO A. FLORES,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:12-CR-97-1
Before JOLLY, DeMOSS and ELROD , Circuit Judges.
PER CURIAM:*
Marco A. Flores appeals his 96-month sentence following his guilty-plea
conviction to one count of possession of visual depictions of a minor engaged in
sexually explicit conduct. He argues that the district court erred in applying a
five-level enhancement to his Sentencing Guidelines offense level under U.S.S.G.
§ 2G2.2(b)(3)(B) because there is insufficient evidence to show that he knowingly
distributed child pornography as required for the imposition of the
§ 2G2.2(b)(3)(B) enhancement.
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-11064 Document: 00512393123 Page: 2 Date Filed: 10/01/2013
No. 12-11064
We review the district court’s interpretation and application of the
Guidelines de novo and its factual determinations for clear error. United States
v. Rodriguez-Mesa, 443 F.3d 397, 401 (5th Cir. 2006). The undisputed evidence
shows that Flores had the necessary technological understanding of the peer-to-
peer file sharing software to use the software to obtain images of child
pornography. The evidence also shows that he had this software on his
computer for more than a year and understood the nature of peer-to-peer file
sharing, including the limitations imposed for not sharing files. We hold that
the district court did not err in applying a five-level enhancement under
§ 2G2.2(b)(3)(B). This court has upheld the application of the enhancement in
cases presenting facts similar to those at issue here. See United States v.
Desadier, 495 F. App’x 501, 503 (5th Cir. 2012); United States v. Onken, 440 F.
App’x 304, 305 (5th Cir. 2011); United States v. Moore, 328 F. App’x 308, 309 (5th
Cir. 2009). Although these cases are not binding precedent, they are persuasive.
See Ballard v. Burton, 444 F.3d 391, 401 & n.7 (5th Cir. 2006).
The judgment of the district court is AFFIRMED.
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