[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-10426 ELEVENTH CIRCUIT
Non-Argument Calendar SEPTEMBER 22, 2010
________________________ JOHN LEY
CLERK
D.C. Docket No. 1:09-cr-00041-JRH-WLB-1
UNITED STATES OF AMERICA,
lllllllllllllllllllll Plaintiff-Appellee,
versus
JEREMY JAMES WILLIAMS,
lllllllllllllllllllll Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
________________________
(September 22, 2010)
Before TJOFLAT, BLACK and KRAVITCH, Circuit Judges.
PER CURIAM:
After appellant pled guilty to receipt of child pornography, in violation of
18 U.S.C. § 2252A(a)(2), the district court sentenced him to prison for 180
months. He now appeals his sentence. He contends that the district court
misapplied the Guidelines when it enhanced the base offense level for the §
2252A(a)(2) offense by two-levels pursuant to § 2G2.2(b)(3)(F) and declined to
reduce his sentence by two-levels pursuant to § 2G2.2(b)(1). The court misapplied
those two sections, he argues, because the Government failed to prove by a
preponderance of the evidence that he intended to distribute child pornography; all
the evidence showed, he submits, was that he only intended to use the LimeWire
peer-to-peer network for the purpose of receiving child pornography. He also
contends that his sentence is substantively unreasonable based on the 18 U.S.C. §
3553(a) factors, and because the prosecutor made him plead guilty to receipt of
child pornography, creating a sentencing disparity, under § 3553(a)(6), between
himself and those defendants permitted to plead guilty to the lesser charge of
possession of child pornography.
I.
Section 2G2.2(b)(3) provides for base offense level increases for child
pornography offenses if the offense involved various forms of distribution of the
prohibited material. U.S.S.G. § 2G2.2(b)(3). Subsections (A) through (E) provide
for enhancements from five to seven levels if a defendant distributed material: (1)
for pecuniary gain; (2) for the receipt or expected receipt of a thing of value other
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than pecuniary gain; (3) to a minor; (4) to a minor with the intent to persuade,
induce, entice or coerce the minor to engage in any illegal activity; and (5) to a
minor with the intent to persuade, induce, entice, coerce, or facilitate the travel of
the minor to engage in prohibited sexual conduct. U.S.S.G. § 2G2.2(b)(3)(A)-(E).
Subsection (F) provides that, for distribution “other than distribution described in
subdivisions (A) through (E), increase by 2 levels.” U.S.S.G. § 2G2.2(b)(3)(F).
The Guidelines manual defines “distribution” as:
[A]ny act, including possession with intent to distribute, production,
transmission, and transportation, related to the transfer of material
involving the sexual exploitation of a minor. Accordingly,
distribution includes posting material involving the sexual
exploitation of a minor on a website for public viewing but does not
include the mere solicitation of such material by a defendant.
U.S.S.G. 2G2.2, comment. (n.1).
Here, the record shows that appellant distributed child pornography by
using a file-sharing network to download child pornography, stored his files in a
shared folder on the network, and allowed other users to access his files. Because
the record contains no evidence to the effect that he did not understand how the
LimeWire file-sharing network worked, we find no error in the court’s application
of the § 2G2.2(b)(3)(F) distribution enhancement.
In relevant part, § 2G2.2(b) also provides for a two-level decrease if a
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defendant’s conduct was limited to only receipt or solicitation of prohibited
materials, and if the defendant did not intend to traffic in or distribute the
materials. U.S.S.G. § 2G2.2(b)(1). We find no error in the court’s application of
§ 2G2.2(b)(1) because the evidence did not support the section’s application; he
distributed child pornography by using the LimeWire file-sharing network, and he
sent photos of his genitalia online to an individual that he believed was an
underage girl. In short, his conduct was not limited to receipt or solicitation of
child pornography.
II.
The court sentenced appellant to a prison term within the Guidelines
sentencing range of 151 to 188 months. We review the reasonableness of a
sentence under the abuse of discretion standard. Gall v. United States, 552 U.S.
38, 56, 128 S.Ct. 586, 600, 169 L.Ed.2d 445 (2007). We evaluate whether the
sentence imposed by the district court fails to achieve the purposes of sentencing
under 18 U.S.C. § 3553(a). Id.
The court sentenced appellant to prison to satisfy the sentencing purpose set
out in § 3553(a)(2)(A), to satisfy the “need for the sentence . . . to reflect the
seriousness of the offense, to promote respect for the law, and to provide just
punishment for the offense.” Although appellant seems to concede this point, he
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contends that the sentence should be vacated because there is an unacceptable
disparity, within the intendment of § 3553(a)(6), between his sentence and the
sentences received by those who pled guilty to the lesser charge of possession of
child pornography. We are not persuaded.
A defendant has no right to engage in plea bargaining, as the decision to
offer a plea bargain is in the discretion of the prosecutor. United States v.
Pleasant, 730 F.2d 657, 664 (11th Cir. 1984). There is no punitive or retaliatory
element to plea bargaining, so long as the accused is free to accept or reject the
prosecution’s offer, in that he is not coerced or threatened into making his choice.
Id. (citing Bordenkircher v. Hayes, 434 U.S. 357, 363, 98 S.Ct. 663, 668,
54 L.Ed.2d 604 (1978)).
AFFIRMED.
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