United States v. Cates

United States Court of Appeals
For the First Circuit
No. 17-1423
UNITED STATES OF AMERICA,
Appellee,
v.
DARRIN CATES,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. John A. Woodcock, Jr., U.S. District Judge]
Before
Howard, Chief Judge,
Selya and Barron, Circuit Judges.
Ronald W. Bourget and Law Offices of Ronald W. Bourget on
brief for appellant.
Halsey B. Frank, United States Attorney, and Julia M. Lipez,
Assistant United States Attorney, on brief for appellee.
July 25, 2018
SELYA, Circuit Judge. A district court's factual
findings at sentencing — as elsewhere — are typically reviewed for
clear error. Those heights are difficult to scale. See United
States v. Matthews, 749 F.3d 99, 105 (1st Cir. 2014). This case
aptly illustrates the point.
Defendant-appellant Darrin Cates pleaded guilty to
possession of child pornography, some of which depicted minors
under twelve years of age. He now challenges his 120-month prison
sentence. Concluding, as we do, that the defendant's assignments
of error are impuissant, we affirm.
I. BACKGROUND
We rehearse the relevant facts and travel of the case
(reserving some details for discussion in connection with specific
issues). Since "this appeal trails in the wake of a guilty plea,
we draw the facts from the undisputed portions of the presentence
investigation report (PSI Report) . . . and the transcripts of the
sentencing hearings." United States v. Coleman, 884 F.3d 67, 69
(1st Cir. 2018).
At the times relevant hereto, the defendant — a self-
employed website developer — resided in Winslow, Maine, with his
wife and two daughters. In late 2014, the Maine State Police
Computer Crimes Unit (MSPCCU) identified an internet protocol (IP)
address registered to the defendant that had shared files
associated with child pornography on BitTorrent, a peer-to-peer
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file-sharing network. The MSPCCU learned that, between September
15 and October 30, the defendant's IP address shared 36 torrents
(large electronic files containing metadata on smaller files,
which here numbered in the thousands). Based on its investigation,
the MSPCCU obtained a search warrant and executed it at the
defendant's residence on January 9, 2015. During the search, the
defendant admitted to using the BitTorrent network to download
"billions of images and videos" of child pornography over the
preceding three years. The defendant's arrest followed, and a
later forensic analysis of his external hard drive and USB flash
drive revealed 826 pornographic images and 298 pornographic videos
involving children between two and eleven years of age.
In due course, a federal grand jury sitting in the
District of Maine handed up a single-count indictment charging the
defendant with possession of child pornography. See 18 U.S.C.
§§ 2252A(a)(5)(B), 2256(8)(A). On October 23, 2015, the defendant
pleaded guilty.
When received, the PSI Report recommended a base offense
level of 18 and suggested several adjustments. Pertinently, these
included a five-level enhancement for "engag[ing] in a pattern of
activity involving the sexual abuse or exploitation of a minor,"
USSG §2G2.2(b)(5), a two-level enhancement for "knowingly
engag[ing] in distribution" of child pornography, id.
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§2G2.2(b)(3)(F), and a three-level downward adjustment for timely
acceptance of responsibility, see id. §3E1.1.
At the disposition hearing, the district court
considered the proposed adjustments. In mulling whether to apply
the pattern of activity enhancement, the court relied on a series
of MSPCCU interviews limned in the PSI Report. One such interview
was with a woman (whom we shall call Jane Doe). After hearing of
the defendant's arrest, Doe called the police and reported that,
in 1997, the defendant — then her mother's boyfriend — had sexually
abused her when she was seven or eight years old. In an interview
with the MSPCCU two days later (January 13, 2015), Doe related the
details of two sexual encounters. During the first such encounter,
the defendant allegedly forced Doe to sit next to him while he
masturbated. During the second such encounter, the defendant
allegedly forced Doe to perform oral sex on him.
Doe went on to admit that she did not report the
defendant's conduct to the authorities until 2001 (when she was
twelve years old). At that time, she described three incidents in
which the defendant allegedly forced her to touch and rub his penis
with her hand and mouth.1 She said that she had performed these
acts because the defendant had threatened to hit her (as he had
done in the past). In an interview with the police the following
1 During the MSPCCU interview fourteen years later, Doe was
unable to remember how many similar incidents had occurred.
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day, the defendant denied Doe's allegations. No charges were
brought.
When the MSPCCU confronted the defendant regarding Doe's
allegations following his January 2015 arrest, the defendant
initially denied any sexual contact with Doe. Later in the same
interview, though, he described an encounter where Doe had reached
for and touched his penis. According to the defendant, he had
been "embarrassed" by the incident and left the room immediately
after it happened.
On June 13, 2016, the Department of Homeland Security
(DHS) interviewed Doe.2 In this interview, Doe was able to recall
that the defendant forced her to touch his erect penis through his
jeans and, several days later, forced her to watch him masturbate
to pornography and then forced her to perform oral sex on him.
The defendant did not deny Doe's allegations at
sentencing, and the district court imposed a five-level
enhancement for "engag[ing] in a pattern of activity involving the
sexual abuse or exploitation of a minor." The court also imposed
a two-level enhancement for "knowingly engag[ing] in the
distribution of child pornography," finding that the defendant
"distributed child pornography in a shared directory available for
2 DHS's involvement stemmed from its obligation to "provide
training, technical expertise, support, or coordination of child
exploitation investigations, as needed, to cooperating law
enforcement agencies and personnel." 6 U.S.C. § 473(b)(2)(C).
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download over a peer-to-peer network and knew he was doing so."
The court based this finding on, among other things, the premise
that although "there's no evidence that [the defendant] actively
distributed any pornography to anyone . . . [he made] his platform
available for others to receive pornography that was on his
computer."
The court further found that the defendant had timely
accepted responsibility for the offense of conviction and had
neither falsely denied nor frivolously contested any relevant
conduct. Accordingly, the court granted a three-level downward
adjustment for acceptance of responsibility.
As adjusted, the defendant's total offense level was 35.
Coupled with his placement in criminal history category I, this
offense level yielded a guideline sentencing range of 168 to 210
months. The court reviewed the pertinent sentencing factors, see
18 U.S.C. § 3553(a), and attempted to balance the defendant's
conduct against what it perceived to be the aggregate severity of
the child pornography guidelines. In the end, the court imposed
a below-the-range sentence: a 120-month term of immurement. This
timely appeal ensued.
II. ANALYSIS
In this venue, the defendant challenges both the five-
level enhancement for "engag[ing] in a pattern of activity
involving the sexual abuse or exploitation of a minor," USSG
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§2G2.2(b)(5), and the two-level enhancement for "knowingly
engag[ing] in [the] distribution" of child pornography, id.
§2G2.2(b)(3)(F). We examine these challenges separately.
At the outset, we pause to set the standard of review in
place. For preserved claims of sentencing error, "we review the
sentencing court's 'interpretation and application of the
sentencing guidelines' de novo, [and] the court's 'factfinding for
clear error.'" United States v. Ortiz-Carrasco, 863 F.3d 1, 3
(1st Cir. 2017) (quoting United States v. Ruiz-Huertas, 792 F.3d
223, 226 (1st Cir. 2015)). So, too, we review only for clear error
a sentencing court's findings based on inferences drawn from
discerned facts. See United States v. Nuñez, 852 F.3d 141, 144
(1st Cir. 2017). In undertaking appellate review of the
defendant's claims of error, we remain mindful that "the government
bears the burden of proving sentence-enhancing factors by a
preponderance of the evidence." Id.
A. Pattern of Activity.
Through the pattern of activity enhancement, a
defendant's offense level may be increased by five levels "[i]f
the defendant engaged in a pattern of activity involving the sexual
abuse or exploitation of a minor." USSG §2G2.2(b)(5). The
commentary to the sentencing guidelines — which we generally treat
as authoritative unless it conflicts with federal law, see Stinson
v. United States, 508 U.S. 36, 38 (1993) — supplies a gloss. It
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defines a "pattern of activity" as "any combination of two or more
separate instances of the sexual abuse or sexual exploitation of
a minor by the defendant." USSG §2G2.2, cmt. n.1. In this case,
the sentencing court found the requisite pattern of activity based
on Doe's allegations about the 1997 encounters.
The defendant attacks this finding on three fronts. All
of these attacks fail.
1. Catch-22. The defendant's most ferocious attack
posits that he was unable to refute the facts underlying the
pattern of activity enhancement without jeopardizing his offense-
level reduction for acceptance of responsibility. See USSG §3E1.1.
He says that he was trapped in a "catch-22": if he contested Doe's
allegations about the 1997 encounters and did not prevail, he might
be subject not only to the five-level pattern of activity
enhancement but also to the loss of the three-level acceptance of
responsibility reduction. Forcing him to choose between
challenging the enhancement and retaining the reduction, his
thesis runs, was fundamentally unfair.
The defendant does not identify the legal doctrine upon
which this argument is premised. We assume, favorably to the
defendant, that he is mounting an argument under the Due Process
Clause. See U.S. Const. amend. V; see also Kandamar v. Gonzales,
464 F.3d 65, 69 (1st Cir. 2006) (analyzing non-specific unfairness
claim as due process claim). Because this argument was made below
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and turns on a question of law, it engenders de novo review. See
United States v. Chiaradio, 684 F.3d 265, 282 (1st Cir. 2012).
We begin our appraisal by tracing the contours of the
acceptance of responsibility reduction. A defendant's offense
level may be reduced by two levels if the defendant "truthfully
admit[s] the conduct comprising the offense[] of conviction, and
truthfully admit[s] or [does] not falsely deny[] any additional
relevant conduct," USSG §3E1.1, cmt. n.1(A), and by an additional
level if the defendant gives timely notice of his intention to
enter a guilty plea, see id. §3E1.1(b). Here, the defendant does
not contest the district court's finding that the sexual abuse of
Doe constituted additional relevant conduct. See USSG §1B1.3.
Consequently, the defendant could have lost the reduction for
acceptance of responsibility only if the sentencing court
determined that he had "falsely denie[d] or frivolously
contest[ed]" Doe's allegations. USSG §3E1.1, cmt. n.1(A).
Seen in this light, what the defendant mistakenly
envisions as a catch-22 is merely an illusion. The defendant could
have denied the facts upon which Doe's allegations rested without
jeopardizing the reduction for acceptance of responsibility so
long as his denial was truthful. See Coleman, 884 F.3d at 73.
That prophylaxis gave the defendant all the process that was due.
It is, after all, apodictic that the shield of due process does
not protect a defendant from the consequences of falsely denying
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allegations against him. Cf. United States v. Batista-Polanco,
927 F.2d 14, 22 (1st Cir. 1991) ("[N]o criminal defendant enjoys
a constitutional privilege to testify falsely.").
Seeking to move his case to a different plateau, the
defendant points to the district court's comments regarding the
potential consequences of falsely denying or frivolously
contesting Doe's allegations. At sentencing, the following
colloquy took place:
COURT: Let me be clear about what I'm doing
with acceptance. I don't consider his raising
this issue to be a basis to deny acceptance.
DEFENSE COUNSEL: Okay.
COURT: I'm not going to do that.
DEFENSE COUNSEL: All right.
COURT: It seems to me that there's enough
ambiguity to justify what seems to me to be a
legitimate legal issue, and he hasn't taken
the stand. If he were to take the stand and
actively deny any of this, that would be
another matter. But he hasn't done that. So
I will not deny acceptance, if that helps.
DEFENSE COUNSEL: . . . [W]e await your
decision and we offer no further evidence on
this.
These comments, the defendant complains, had a chilling effect
which deterred him from attempting to defend against Doe's
allegations. This plaint comprises more cry than wool: the
district court took great pains to explain that the defendant would
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not lose the acceptance of responsibility reduction as long as he
testified truthfully.
To be sure, the district court's transparency about the
risks of testifying may have caused the defendant to question his
ability to refute Doe's allegations and to that extent may have
discouraged him from testifying. Even so, there was nothing
coercive or unduly minatory about the court's comments; as we
previously have stated, a court can "educate[]" a defendant about
the potential consequences of a particular litigation strategy
without running afoul of the Due Process Clause. United States v.
Stile, 845 F.3d 425, 431 (1st Cir. 2017) (holding that sentencing
court's admonitions to defendant about dangers incident to
decision to testify did not constitute "threat designed to scare
off" defendant from testifying). That is precisely what happened
here: for aught that appears, the defendant's informed choice to
remain silent and forgo the gamble inherent in contesting Doe's
allegations was a strategic decision, not the product of an
unconstitutional bludgeoning by the district court. See id.
If more were needed — and we do not think that it is —
we note that this case is at a considerable remove from the type
of situation where a judicial admonition might effect a violation
of due process. For example, in Webb v. Texas, 409 U.S. 95 (1972)
(per curiam), the Supreme Court held that a trial judge's direct
threat against the sole defense witness in a criminal jury trial
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deprived the defendant of due process. See id. at 98. But there
— as we explained in Stile — the judge "singled out the witness
for a direct admonition to the effect that [he] need not testify,
and if he did and lied, the . . . judge would personally see to it
that he was indicted for perjury, followed by a likely conviction
and sentence." 845 F.3d at 430. Here, by contrast, the district
court did not "effectively dr[i]ve [the defendant] off the stand,"
Webb, 409 U.S. at 98, but simply made clear the self-evident risks
of testifying falsely. Such a warning was appropriate under the
circumstances. Cf. United States v. Vavages, 151 F.3d 1185, 1189
(9th Cir. 1998) ("A defendant's constitutional rights are
implicated only where the . . . judge employs coercive or
intimidating language or tactics that substantially interfere with
a defense witness' decision whether to testify.").
2. One Incident or Two? Next, the defendant argues that
a pattern of activity did not exist because there was only a single
instance of sexual abuse. As framed, this argument (which was
preserved below) presents a question of law. Thus, it engenders
de novo review. See Chiaradio, 684 F.3d at 282.
As said, a "pattern of activity" is "any combination of
two or more separate instances of the sexual abuse or sexual
exploitation of a minor." USSG §2G2.2, cmt. n.1. The court below
found the pattern of activity enhancement applicable because the
defendant "force[d] this 7- or 8-year-old girl in 1997 to engage
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in oral sex" after (on a previous occasion) having "required her
to feel his genitals through his pants." The court noted that
these two incidents were merely the "tip of the iceberg" with
respect to the defendant's pattern of sexually abusing Doe.
Seeking to undermine this finding, the defendant labors
to collapse the two episodes pinpointed by the district court into
a single incident. In his view, the first episode was merely a
failed attempt to consummate what was accomplished during the
second episode. Building on this foundation, he contends that the
later incident (forced oral sex) subsumed the earlier incident
(forced genital touching), which had transpired a few days earlier.
This effort at revisionist history rings hollow.
It cannot be gainsaid that "an attempt . . . to commit
any of the offenses" constituting sexual abuse or exploitation of
a minor is an independent "instance" contributing to a pattern of
"two or more instances" of abuse. USSG §2G2.2, cmt. n.1. Contrary
to the defendant's implication, the mere fact that the same minor
was involved does not suffice to transmogrify two separate
incidents into a single incident. See id. (explaining that "the
same minor" can be involved in the "combination of two or more
separate instances" comprising a pattern of activity). As is
typical of patterns, the two incidents are similar, but they
nonetheless retain their distinct character: they occurred days
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apart and involved discrete sexual acts. Consequently, each
incident had independent significance.
To cinch the matter, the defendant's argument defies
common sense. A defendant cannot hit someone in the ribs on
Monday, hit the same person in the face on Thursday, and then
plausibly claim that he committed only a single assault because he
had been aiming for the face all along. We hold, without serious
question, that the district court did not err in treating the two
episodes as separate instances within the purview of section
2G2.2(b)(5).
3. Weight of the Evidence. Scrabbling to gain a toehold,
the defendant claims that the district court ascribed too much
weight to Doe's uncorroborated allegations of sexual abuse. Our
review of this claim is for clear error. See Nuñez, 852 F.3d at
144. Clear error may be found only when "an inquiring court
'form[s] a strong, unyielding belief that a mistake has been
made.'" Id. (quoting United States v. Cintrón-Echautegui, 604
F.3d 1, 6 (1st Cir. 2010) (alteration in original)). Where, as
here, "raw facts are susceptible to competing inferences, the
sentencing court's choice between those inferences cannot be
clearly erroneous." United States v. McCormick, 773 F.3d 357, 359
(1st Cir. 2014).
It is common ground that "'previous sexual assaults,
although occurring long ago, [can] be considered' when applying a
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section 2G2.2 'pattern of abuse' enhancement." United States v.
Clark, 685 F.3d 72, 79 (1st Cir. 2012) (quoting United States v.
Woodward, 277 F.3d 87, 90-92 (1st Cir. 2002)). The mere fact that
Doe's allegations dated back some twenty years is not, in and of
itself, a disqualifying circumstance. See, e.g., id. (finding
allegations that dated back thirty years or more adequate to
support pattern of activity enhancement); Woodward, 277 F.3d at
91-92 (finding allegations that dated back twenty-two years or
more adequate to support pattern of activity enhancement); United
States v. Amirault, 224 F.3d 9, 12-13 (1st Cir. 2000) (finding
allegations that dated back twenty years or more adequate to
support pattern of activity enhancement).
The defendant says that this case is different because
Doe's allegations lack "tangible or corroborating evidence" and he
was neither charged with nor confessed to the alleged acts.3 He
submits that the lack of corroboration, charges, and inculpatory
statements, coupled with the age of the allegations, left the
district court without a sufficient basis on which to find abuse.
3 To the extent that the defendant asserts that conduct which
did not result in conviction cannot count toward the pattern of
activity enhancement, his assertion is flatly wrong. See USSG
§2G2.2, cmt. n.1 (defining "pattern of activity" as "any
combination of two or more separate instances of the sexual abuse
or sexual exploitation of a minor by the defendant, whether or not
the abuse or exploitation . . . resulted in a conviction for such
conduct"); see, e.g., United States v. Gaffney-Kessell, 772 F.3d
97, 101 (1st Cir. 2014); Woodward, 277 F.3d at 91.
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We are not convinced. The defendant's argument gives insufficient
weight to the "time-tested tenet that 'credibility determinations
are part of the sentencing court's basic armamentarium.'" United
States v. Bernier, 660 F.3d 543, 546 (1st Cir. 2011) (quoting
United States v. Platte, 577 F.3d 387, 392-93 (1st Cir. 2009)).
On appeal, we will not disturb such a determination absent "a
definite and firm conviction that a mistake has been committed."
Id. (quoting United States v. González-Vélez, 587 F.3d 494, 504
(1st Cir. 2009)). A careful review of the record leaves us with
no such conviction.
The district court considered all of the evidence
properly before it and took due account of the totality of the
circumstances. It gave particular weight to the relative
timeliness of Doe's 2001 report, the general consistency of her
allegations across multiple interviews spanning over fourteen
years, and the defendant's "contradictory" statements. The court
expressed no uncertainty about its conclusion that Doe was
credible, and we have no compelling basis on which to second-guess
that credibility determination. See Amirault, 224 F.3d at 13
(observing that "questions of credibility . . . are uniquely within
the competence of the sentencing court").
That ends this aspect of the matter. Factfinding is
peculiarly within the province of the sentencing court and,
affording due deference to the factual findings here, we conclude
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that the court below did not err in applying the pattern of
activity enhancement.
B. Knowing Distribution.
This brings us to the defendant's claim that the district
court erred in finding that he knowingly engaged in the
distribution of child pornography. We review this finding, which
resulted in a two-level enhancement, for clear error. See Nuñez,
852 F.3d at 144.
Some background helps to lend perspective. A sentencing
court may increase a defendant's offense level by two levels "[i]f
the defendant knowingly engaged in [the] distribution" of child
pornography. USSG §2G2.2(b)(3)(F). The defendant does not deny
that he took part in the act of distribution. Consequently, our
inquiry here reduces to whether the defendant's distribution
activities were undertaken knowingly.
The stipulation that distribution be "knowing" was not
part of the original version of the child pornography guidelines
but, rather, was added, effective November 1, 2016, to clarify the
mens rea needed to trigger section 2G2.2(b)(3)(F). See USSG App.
C, Amend. 801 (effective Nov. 1, 2016). This amendment took effect
in the interim between the defendant's guilty plea and his
sentencing. As a general rule, the guidelines in effect on the
date of sentencing control, see United States v. Harotunian, 920
F.2d 1040, 1041-42 (1st Cir. 1995) ("Barring any ex post facto
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problem, a defendant is to be punished according to the guidelines
in effect at the time of sentencing."), and the defendant does not
dispute that Amendment 801 applies retroactively.4
In adopting Amendment 801, the Sentencing Commission
explained that, in general, it was attempting to codify the
approach of the Second, Fourth, and Seventh Circuits, all of which
had held that when a "knowing distribution" enhancement is premised
upon the use of a peer-to-peer file-sharing program, the
enhancement requires only that a defendant know "of the file-
sharing properties of the program." USSG App. C, Amend. 801; see
United States v. Baldwin, 743 F.3d 357, 361 (2d Cir. 2014) (per
curiam); United States v. Robinson, 714 F.3d 466, 469-70 (7th Cir.
2013); United States v. Layton, 564 F.3d 330, 335 (4th Cir. 2009).
Thus, the enhancement may apply even if a defendant lacked an
intent to distribute child pornography, as long as he had knowledge
that by using a peer-to-peer file-sharing program, his child
pornography was made accessible to others. See United States v.
Ryan, 885 F.3d 449, 453-54 (7th Cir. 2018) (applying USSG
§2G2.2(b)(3)(F) as amended), petition for cert. filed, (U.S. May
4
In all events, the Sentencing Commission characterized
Amendment 801 as a clarifying amendment. See USSG App. C, Amend.
801. When amendments are clarifying rather than substantial, they
are deemed to be "purely expository." United States v. Cabrera-
Polo, 376 F.3d 29, 32 (1st Cir. 2004). As such, they apply to
offenses committed before their enactment. See United States v.
Carrasco-Mateo, 389 F.3d 239, 245 (1st Cir. 2004).
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23, 2018) (No. 17-9172); Baldwin, 743 F.3d at 361 (noting that
"intent is irrelevant for an enhancement under §2G2.2(b)(3)(F)"
and that the enhancement is warranted when a defendant has
subjective knowledge "that his use of [peer-to-peer] software
would make child-pornography files accessible to other users"
(emphasis in original)).
The defendant argues that it was clear error for the
district court to apply this enhancement to him because there was
no evidence that he knew of the file-sharing properties of
BitTorrent. This argument confuses a lack of direct evidence with
a lack of evidence: the government need not prove knowledge by
direct evidence, but may prove knowledge by circumstantial
evidence. See Nuñez, 852 F.3d at 146. To become a member of the
BitTorrent network, the defendant installed a computer program and
created a "sharing folder," where files downloaded from the network
were stored. By default, files stored in this folder were
available for download by other BitTorrent users. Although it is
possible that a user might not know about BitTorrent's file-sharing
properties, the defendant was no Luddite. After installing the
program, he used it to download child pornography for roughly three
years before his arrest. Moreover, he was savvy enough in the use
of the technology to establish a methodology by which files
downloaded from BitTorrent would bypass his master hard drive and
be saved automatically to the "sharing folder" housed on a
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subservient drive. This specialized configuration, combined with
the defendant's twenty years of experience as a web designer,
evinced a level of technical competence that allowed the district
court to find that the defendant was "relatively sophisticated in
computer matters."
The defendant's descriptions of BitTorrent in his
interview with the MSPCCU are also relevant. There, he
demonstrated considerable familiarity with BitTorrent's file-
sharing properties, acknowledging that BitTorrent drew "bits and
pieces of files from all over the place," such that each file
stemmed from "a lot of different seeds."5 With regard to the
sharing folder, the defendant noted that he could "stop it and
shut it off" — an apparent acknowledgement of his ability to
control the flow of traffic in and out of the folder. Last — but
surely not least — the defendant had three years of hands-on
experience downloading child pornography through BitTorrent. This
concatenation of circumstances, especially when combined with the
defendant's extensive use of the program, furnished a solid basis
for inferring a likelihood of familiarity with its basic
properties. See Ryan, 885 F.3d at 453-54 (upholding imposition of
knowing distribution enhancement based partly on use of
5For present purposes, it suffices to understand a seed as a
computer in possession of a file to be shared on a peer-to-peer
network.
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"sophisticated software"). The district court supportably drew
such an inference.
The defendant tries to counter this trove of
circumstantial evidence by suggesting that not all peer-to-peer
file-sharing programs inform users that their files are
automatically accessible for others to download. This suggestion
is a red herring: it does not bear upon the defendant's subjective
knowledge of whether his use of BitTorrent made his files available
for distribution to others. Faced with the record before it, the
district court drew a reasonable inference that the defendant knew
of BitTorrent's file-sharing properties. No more was exigible to
sustain a finding of knowledge. See id.; cf. Chiaradio, 684 F.3d
at 281-82 (holding that evidence of technological savvy supported
jury verdict for knowing distribution of child pornography).
Discerning no clear error, we uphold the district court's
imposition of the two-level enhancement for knowing distribution
of child pornography.
III. CONCLUSION
We need go no further. For the reasons elucidated above,
the defendant's sentence is
Affirmed.
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