United States v. Neal Gaughran

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-15265 ELEVENTH CIRCUIT
Non-Argument Calendar JUNE 9, 2011
________________________ JOHN LEY
CLERK
D.C. Docket No. 2:10-cr-14060-KMM-1
UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllllllllllll Plaintiff-Appellee,
versus
NEAL CHRISTOPHER GAUGHRAN,
llllllllllllllllllllllllllllllllllllllll Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(June 9, 2011)
Before TJOFLAT, MARTIN, and FAY, Circuit Judges.
PER CURIAM:
In appealing his prison sentence of 210 months imposed following a plea of
guilty to receipt of child pornography, in violation of 18 U.S.C. § 2252(a)(2),
appellant raises one issue: whether the district court, in determining the Guidelines
sentencing range, erred in enhancing the base offense level (for the offense) by
five levels, pursuant to U.S.S.G. § 2G2.2(b)(3)(B), for distribution with the
expectation of receipt of a “thing of value” based on his alleged use of
peer-to-peer file-sharing software. We resolve the issue against appellant and
therefore affirm.
We review the district court’s factual findings for clear error and its
application of the Sentencing Guidelines to those facts de novo. United States v.
Bender, 290 F.3d 1279, 1284 (11th Cir. 2002). “For a factual finding to be clearly
erroneous, [we], after reviewing all of the evidence, must be left with a definite
and firm conviction that a mistake has been committed.” United States v.
Rodriguez-Lopez, 363 F.3d 1134, 1137 (11th Cir. 2004) (internal quotations
omitted).
The base offense level of a § 2252(a)(2) offense is enhanced by five levels
under § 2G2.2(b)(3)(B) if the offense involved the “distribution for the receipt, or
expectation of receipt, of a thing of value, but not for pecuniary gain . . . .”
U.S.S.G. § 2G2.2(b)(3)(B). Child pornography can constitute a “thing of value”
for purposes of the enhancement. U.S.S.G. § 2G2.2, comment. (n.1).
“Distribution” is defined as including “posting material involving the sexual
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exploitation of a minor . . . for public viewing but does not include the mere
solicitation of such material by a defendant.” Id. When a defendant distributes
child pornography with the expectation that he will receive other child
pornography in exchange, the district court may properly apply this enhancement.
Bender, 290 F.3d at 1286.
Appellant has not shown that the district court clearly erred in applying the
§ 2G2.2(b)(3)(B) enhancement. We are not left with the “definite and firm”
conviction that the court made a mistake because it could reasonably find on the
record before it that appellant was aware of the nature of his file-sharing program
and had the expectation of receiving additional child pornography in exchange
with those who accessed his shared folder.
AFFIRMED.
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