United States v. Sheldon Joel Ramnaraine

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 15-15668
Non-Argument Calendar
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D.C. Docket No. 6:11-cr-00356-CEH-TBS-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SHELDON JOEL RAMNARAINE,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Florida
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(April 6, 2018)
Before WILLIAM PRYOR, MARTIN, and ANDERSON, Circuit Judges.
PER CURIAM:
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Sheldon Joel Ramnaraine appeals from his 87-month sentence, imposed
after he pled guilty to possession and distribution of child pornography. He argues
the district court erred in applying 5-level enhancements under United States
Sentencing Guideline § 2G2.2(b)(3)(B) and (b)(7)(D). After careful consideration,
we affirm.
I.
Ramnaraine was charged with one count of possession of child pornography,
in violation of 18 U.S.C. § 2252A(a)(5)(B) and (b)(2), and one count of
distribution of child pornography, in violation of 18 U.S.C. § 2252A(a)(2)(B) and
(b)(1). He pled guilty to both counts without a plea agreement. The presentence
investigation report (“PSR”) calculated Ramnaraine’s base offense level as 22. It
then applied a number of enhancements, including a 5-level enhancement under
Guideline § 2G2.2(b)(3)(B) and a 5-level enhancement under § 2G2.2(b)(7)(D).
Ramnaraine made a general objection to these enhancements at his sentencing, but
admitted that “if the United States Attorney called the FBI witness to testify,” the
district court would have no “legal basis” to reject the enhancements. He also did
not dispute the facts in the PSR. Based on the government’s factual proffer at
sentencing and the facts in the PSR, the district court overruled Ramnaraine’s
objection. The court granted a downward variance, however, and imposed an 87-
month sentence. This appeal followed.
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II.
We generally review a district court’s findings of fact for clear error and
review de novo its application of the guidelines. United States v. Gupta, 463 F.3d
1182, 1199 (11th Cir. 2006). “[A]bsent a stipulation or agreement between the
parties, an attorney’s factual assertions at a sentencing hearing do not constitute
evidence that a district court can rely on.” United States v. Washington, 714 F.3d
1358, 1361 (11th Cir. 2013).
When a defendant raises a sentencing claim on appeal that he did not raise to
the district court, we review for plain error. United States v. Aguillard, 217 F.3d
1319, 1320 (11th Cir. 2000) (per curiam). “For this Court to correct plain error:
(1) there must be error; (2) the error must be plain; and (3) the error must affect
substantial rights.” Id. (quotation omitted). “If these conditions are met, we may
exercise our discretion to notice a forfeited error, but only if the error seriously
affects the fairness, integrity, or public reputation of judicial proceedings.” United
States v. Rodriguez, 751 F.3d 1244, 1257 (11th Cir. 2014) (quotation omitted).
Under Guideline § 2G2.2(b)(3)(B), a 5-level enhancement applies if the
defendant distributed child pornography “for the receipt, or expectation of receipt,
of a thing of value, but not for pecuniary gain.” USSG § 2G2.2(b)(3)(B) (2011).1
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“In reviewing the district court’s application of the Guidelines, this Court applies the
version of the guidelines in effect on the date of the sentencing hearing,” as well as any
clarifying amendments issued later. United States v. Jerchower, 631 F.3d 1181, 1184 (11th Cir.
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In the context of file-sharing programs, “the mere use of [such] a program . . . does
not, by itself, establish a transaction” that will support the enhancement. United
States v. Spriggs, 666 F.3d 1284, 1288 (11th Cir. 2012). Instead, the evidence
must show that the defendant’s sharing of child pornography with other users was
conditioned on something in return, such as a return promise to share. Id.
Guideline § 2G2.2(b)(7)(D) imposes a 5-level enhancement if the offense
involved at least 600 images of child pornography. USSG § 2G2.2(b)(7)(D)
(2011); id. § 2G2.2 cmt. n.4(A). A video that contains child pornography is
equivalent to 75 images. Id. § 2G2.2 cmt. n.4(B)(ii).
III.
Although Ramnaraine objected to the enhancements under Guideline
§ 2G2.2(b)(3)(B) and (b)(7)(D) at sentencing, he did not make any legal argument
to the district court about why these enhancements should not apply. We thus
review for plain error only. See Aguillard, 217 F.3d at 1320. Also, because
Ramnaraine stipulated to the government’s factual proffer, we can rely on the
proffer to determine whether the district court plainly erred in applying these
enhancements. See Washington, 714 F.3d at 1361.
2011) (quotation omitted and alteration adopted). Although Guideline § 2G2.2(b)(3)(B) was
amended in 2016, Ramnaraine does not argue the amended Guideline should apply in his case
and indeed says it has “no application.” See USSG § 2G2.2(b)(3)(B) (2016). We thus apply the
2011 Guideline without deciding anything more.
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We conclude the district court correctly applied both 5-level enhancements.
As to Guideline § 2G2.2(b)(3)(B), the PSR stated that Ramnaraine used Gigatribe,
a file-sharing program. At sentencing, the government proffered that Ramnaraine
admitted in his interviews with law enforcement that he used Gigatribe in order to
trade child pornography. The government also described a chat recovered from
Ramnaraine’s computer in which Ramnaraine told another user, “[E]ither you
share or I will ban you.” Together, this was sufficient evidence that Ramnaraine
conditioned his sharing of child pornography on a return promise to share. See
Spriggs, 666 F.3d at 1288. Thus, the district court did not err in applying the
5-level enhancement under Guideline § 2G2.2(b)(3)(B).
As to Guideline § 2G2.2(b)(7)(D), the PSR stated that an undercover law-
enforcement officer downloaded “390 pictures and 3 videos of child pornography”
from Ramnaraine and that a forensic computer examiner later found “210 images
and 4 videos” on Ramnaraine’s electronic storage device. As each video is
considered to have 75 images, USSG § 2G2.2 cmt. n.4(B)(ii), Ramnaraine’s
offense involved 1,125 images, well over the 600-image minimum needed to apply
the 5-level enhancement. See id. § 2G2.2(b)(7)(D). Thus, there was no error by
the district court.
AFFIRMED.
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