Case: 13-10499 Date Filed: 09/25/2013 Page: 1 of 4
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 13-10499
Non-Argument Calendar
________________________
D.C. Docket No. 4:12-cr-10007-KMM-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MICHAEL MARAN,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(September 25, 2013)
Before CARNES, Chief Judge, MARTIN and FAY, Circuit Judges.
PER CURIAM:
Jason Maran appeals his 293-month sentence for distribution and possession
of child pornography, in violation of 18 U.S.C. §§ 2252(a)(2) and 2252(a)(4)(B).
Case: 13-10499 Date Filed: 09/25/2013 Page: 2 of 4
Maran contends that the district court erred by applying a five-level sentencing
enhancement under § 2G2.2(b)(3) of the United States Sentencing Guidelines for
distributing child pornography for the receipt, or expectation of receipt, of a thing
of value. Specifically, he asserts that there was no evidence that he did more than
gratuitously share images of child pornography with no expectation of receiving
anything in return.
We review a district court’s factual findings for clear error and its
application of those facts to justify a sentencing enhancement de novo. United
States v. Spriggs, 666 F.3d 1284, 1286 (11th Cir. 2012). Section 2G2.2(b)(3)(B)
provides for a five-level sentencing enhancement where a defendant engages in the
distribution of child pornography “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). The
provision applies to any type of “bartering or other in-kind transaction” for
valuable consideration, such as the exchange of child pornography. Id.
§ 2G2.2(b)(3)(B), comment. n.1. Thus, “when a defendant trades child
pornography in exchange for other child pornography, the defendant has engaged
in distribution for the receipt, or expectation of receipt, of a thing of value.”
United States v. Bender, 290 F.3d 1279, 1286 (11th Cir. 2002) (quotation marks
omitted).
2
Case: 13-10499 Date Filed: 09/25/2013 Page: 3 of 4
But simply making child pornography available to other individuals, without
anticipating anything in return, is not sufficient to warrant application of the
enhancement. In United States v. Vadnais, 667 F.3d 1206, 1209 (11th Cir. 2012),
which Maran heavily relies on, we held that the mere use of a peer-to-peer file-
sharing network to download child pornography, which by default allows other
users to access those same images, does not support the application of a §
2G2.2(b)(3)(B) enhancement absent “some other evidence, whether direct or
circumstantial, that [the] defendant reasonably believed that he would receive
something of value by making his child pornography files available for distribution
. . . .” Such evidence, we elaborated, “must show the connection between the
defendant’s distribution and the receipt or expectation of receipt of a thing of
value.” Id. In other words, the government must present some evidence that the
defendant “shared his child pornography to gain access to another [person’s]
pornography” or conditioned his decision to make such images available “on a
return promise to share files.” Spriggs, 666 F.3d at 1288.
There was such evidence in this case and, for that reason, the district court
did not err in applying the five-level sentencing enhancement mandated by
§ 2G2.2(b)(3)(B). Unlike the circumstances in Vadnais, Maran engaged in a one-
on-one email exchange of child pornography with another person and admitted on
numerous occasions that he “traded” child pornography online. Maran
3
Case: 13-10499 Date Filed: 09/25/2013 Page: 4 of 4
acknowledged at his plea hearing that, in response to an email request to trade
child pornography, he directed his correspondent to “send him [an] index sheet” of
illicit images in exchange for another set of images, which he later sent to the
correspondent after receiving several images of child pornography. Maran also
admitted to law enforcement agents, a probation officer, and in his written
acceptance-of-responsibility statement that he amassed his collection of child
pornography by trading images and videos with other people via email. Maran’s
conduct, his admissions, and his consistent use of the word “trade” to describe his
interactions with other child pornography collectors were sufficient to support a
determination that he distributed child pornography with the reasonable
expectation or belief of receiving child pornography in return, not simply that he
gratuitously shared those illicit images with others. Accordingly, we affirm
Maran’s sentence.
AFFIRMED.
4