United States v. William McManus

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 12-4901

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

WILLIAM DEVON MCMANUS,

Defendant - Appellant.

Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Catherine C.
Eagles, District Judge. (1:12-cr-00174-CCE-1)

Argued: September 20, 2013 Decided: October 30, 2013

Before GREGORY and DUNCAN, Circuit Judges, and Samuel G.
WILSON, United States District Judge for the Western
District of Virginia, sitting by designation.

Vacated and remanded for resentencing by published opinion.
Judge Duncan wrote the opinion, in which Judge Gregory and
Judge Wilson joined.

ARGUED: Eugene Ernest Lester, III, SHARPLESS & STAVOLA,
PA, Greensboro, North Carolina, for Appellant. Anand P.
Ramaswamy, OFFICE OF THE UNITED STATES ATTORNEY,
Greensboro, North Carolina, for Appellee. ON BRIEF:
Ripley Rand, United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Greensboro, North Carolina, for Appellee.
DUNCAN, Circuit Judge:

William Devon McManus pleaded guilty to one count of

Possession of Child Pornography in violation of 18 U.S.C. §

2252A(a)(5)(B) and (b)(2). He was sentenced to 72 months’

imprisonment and a subsequent 10 years’ supervised release.

McManus appeals his sentence on the ground that the

district court improperly calculated the applicable

Sentencing Guideline range. For the reasons that follow,

we vacate and remand for resentencing.

I.

McManus used a file-sharing computer program known as

Gigatribe to acquire and maintain images and videos of

child pornography. Gigatribe allows users to share files

with other users with whom they have become “friends”

through an invitation and acceptance feature of the

program. A user is not able to see or access another

user’s files unless: 1) one user has invited the other and

the other has accepted the invitation; and 2) the other

user maintains a shared folder, accessible to friends, that

is populated with files.

McManus created a shared folder and populated it with

the files of child pornography he possessed. An FBI agent

downloaded some of these files from McManus’s Gigatribe

2
account, leading to McManus’s arrest and indictment. There

is no evidence in the record to indicate how the FBI agent

gained access to McManus’s restricted shared folder. The

FBI agent gave McManus nothing in exchange for the files he

downloaded and there is no evidence that any other

individual downloaded pornographic files from McManus.

At the sentencing hearing following McManus’s guilty

plea, the district court applied a five-level enhancement

under United States Sentencing Guideline § 2G2.2(b)(3)(B)

to McManus’s base possession offense level. This

enhancement applies when a defendant has “distributed”

child pornography “for the receipt, or expectation of

receipt, of a thing of value, but not for pecuniary gain.”

Applying this enhancement, the district court concluded

that McManus’s offense level was 33 and his criminal

history category was I. 1 The district court calculated a

sentencing range of 135 to 168 months which it reduced to a

range of 120 to 120 months to comply with the statutory

maximum. 2 The district court applied a downward variance

based primarily on the relative seriousness of McManus’s

1
McManus does not challenge any of the district
court’s other non-distribution enhancements under § 2G2.2.
2
See 18 U.S.C. § 2252A(b)(2).
3
offense, resulting in a sentence of 72 months’

imprisonment. 3

II.

On appeal, McManus contends that his sentence is

procedurally unreasonable because the district court

improperly calculated his Guideline range under U.S.S.G. §

2G2.2(b). He argues that the district court erred by

applying the five-level enhancement under § 2G2.2(b)(3)(B)

instead of the two-level enhancement for simple

distribution under § 2G2.2(b)(3)(F).

We review criminal sentences for reasonableness using

an abuse of discretion standard. Gall v. United States,

552 U.S. 38, 51 (2007). We review the district court’s

factual findings for clear error and its legal conclusions

de novo. United States v. Strieper, 666 F.3d 288, 292 (4th

Cir. 2012). The review proceeds in two parts. We first

determine whether the district court committed any

significant procedural error. Id. If the sentence is

procedurally sound, we review its substantive

reasonableness to determine whether in the totality of the

3
McManus does not challenge the district court’s
imposition of a ten-year period of supervised release. A
term of supervised release from one year up to life is
permissible for sex offenses. U.S.S.G. § 5D1.2(b).
4
circumstances the district court abused its discretion by

concluding that the sentence satisfies the standards set

out in 18 U.S.C. § 3553(a). Gall, 552 U.S. at 51.

Interpretation of the Sentencing Guidelines is a

question of law that we review de novo. United States v.

Price, 711 F.3d 455, 458 (4th Cir. 2013). “Although the

sentencing guidelines are only advisory, improper

calculation of a guideline range constitutes significant

procedural error, making the sentence procedurally

unreasonable and subject to being vacated.” Hargrove, 701

F.3d 156, 161 (4th Cir. 2012). However, sentencing error

is subject to harmlessness review. Sentencing “error is

harmless if the resulting sentence [is] not ‘longer than

that to which [the defendant] would otherwise be subject.’”

United States v. Mehta, 594 F.3d 277, 283 (4th Cir. 2010)

(quoting United States v. Stokes, 261 F.3d 496, 499 (4th

Cir. 2001)).

III.

The proper manner of applying the five-level

§2G2.2(b)(3)(B) enhancement to a defendant’s use of a file-

sharing program to distribute child pornography is a

question of first impression in this Circuit. Strieper,

666 F.3d at 295 (finding that we have not yet answered this

5
question and declining to do so based on the procedural

posture of the case). The central issues before us are the

meaning of the phrase “[d]istribution for the ...

expectation of receipt[] of a thing of value,” and what

evidence constitutes sufficient proof that a defendant had

such an expectation. U.S.S.G. § 2G2.2(b)(3)(B). Although

a number of other circuits have interpreted this phrase, we

have not, and it is incumbent upon us to do so “according

to the ordinary rules of statutory construction.”

Strieper, 666 F.3d at 293-94.

A.

When interpreting the Sentencing Guidelines, “[a]s in

all cases of statutory interpretation, our inquiry begins

with the text of the statute.” United States v. Ashford,

718 F.3d 377, 382 (4th Cir. 2013) (quoting Chesapeake Ranch

Water Co. v. Bd. of Comm’rs of Calvert Cnty., 401 F.3d 274,

279 (4th Cir. 2005)). “We determine the plainness or

ambiguity of the statutory language ... by reference to the

language itself, the specific context in which that

language is used, and the broader context of the statute as

a whole.” United States ex rel. Carter v. Halliburton Co.,

710 F.3d 171, 189 (4th Cir. 2013) (internal quotation marks

and citations omitted). “[W]here the statutory language is

ambiguous we turn to other evidence to interpret the

6
meaning of the provision ... including the Sentencing

Guidelines commentary.” Ashford, 718 F.3d at 382

(alteration in original) (internal quotation marks and

citations omitted).

Section 2G2.2 states, in relevant part, that:

If the offense involved:
(A) Distribution for pecuniary gain, increase by
the number of levels from the table in § 2B1.1
(Theft, Property Destruction, and Fraud)
corresponding to the retail value of the material,
but by not less than 5 levels.
(B) Distribution for the receipt, or expectation
of receipt, of a thing of value, but not for
pecuniary gain, increase by 5 levels.
(C) Distribution to a minor, increase by 5 levels.
(D) Distribution to a minor that was intended to
persuade, induce, entice, or coerce the minor to
engage in any illegal activity, other than illegal
activity covered under subdivision (E), increase
by 6 levels.
(E) Distribution to a minor that was intended to
persuade, induce, entice, coerce, or facilitate
the travel of, the minor to engage in prohibited
sexual conduct, increase by 7 levels.
(F) Distribution other than distribution described
in subdivisions (A) through (E), increase by 2
levels.

U.S.S.G. § 2G2.2(b)(3).

In the context of the entirety of § 2G2.2 and our

precedent interpreting its elements, the meaning of the

phrase at issue is unambiguous. It is clear from the text

of the Guidelines that § 2G2.2(b)(3)(F) is a residual

enhancement and that application of §§ 2G2.2(b)(3)(A) - (E)

require proof beyond that necessary to trigger § (F). In

7
United States v. Layton, we held that the elements of § (F)

are satisfied when a defendant knowingly permits others to

access and retrieve child pornography files in the

defendant’s possession, even if he does so passively. 564

F.3d 330, 335 (4th Cir. 2009). A plain reading of the text

also indicates the type of additional proof that is

required to trigger § (B). If the Government proves

distribution, it must then prove that the defendant

distributed pornography with the specific purpose of

securing some kind of benefit in exchange. The Government

must show that the defendant conditioned his decision to

distribute his files on his belief that he would receive

something of value in return. The requisite proof of

intent is the same whether the exchange is realized

(“receipt”) or not (“expectation of receipt”). To the

extent that there is any dispute about the meaning of “a

thing of value, but not ... pecuniary gain,” that term is

defined in the application notes, and includes the exchange

of child pornographic materials. U.S.S.G. § 2G2.2, cmt. 1.

There is no indication in the text of the statute that

“expectation” should be given anything other than its

commonly understood meaning. See United States v. Powell,

680 F.3d 350, 355 (4th Cir. 2012). However, it is

important to note that an expectation is more than a mere

8
hope. A thing that is expected is reasonably likely to

occur, while a thing that is hoped for is at best merely

possible.

The burden is on the Government to prove the facts

needed to support a sentencing enhancement by a

preponderance of the evidence. United States v. Grubbs,

585 F.3d 793, 799-803 (4th Cir. 2009). In light of the

above, to trigger the § 2G2.2(b)(3)(B) five-level

enhancement, the Government must show that the defendant:

1) knowingly made child pornography in his possession

available to others by some means, and 2) made his

pornographic materials available for the specific purpose

of obtaining something of valuable consideration, such as

more pornography, whether or not he actually succeeded in

obtaining the desired thing of value.

IV.

In this case, the parties agree that McManus’s acts

are sufficient to satisfy at least the first element of

proof and to trigger the residual distribution enhancement

under Layton. The Government argues that McManus’s use of

Gigatribe to distribute child pornography “constitutes acts

greater than those seen in Layton,” and that proof of those

acts is sufficient to satisfy the additional burden of

9
proof for the five-level enhancement. Appellee’s Br. 10.

It contends that: 1) the invitation and acceptance feature

of Gigatribe renders any use of the program for

distribution inherently reciprocal, and 2) McManus

intentionally used Gigatribe to create a shared folder

containing pornographic material with the knowledge that

other users could access and download those files. 4 We

address, and reject, these arguments in turn.

A.

The Government first argues that “[t]here is an

inherent reciprocity in the invitation and acceptance

process necessary to gain mutual access to users’ files

which exceeds the distribution seen in Layton, and supports

U.S.S.G. 2G2.2(b)(3)(B)’s ‘expectation of receipt’ and

resulting five-level increase.” Appellee’s Br. 10. This

argument relies primarily on the distinction between open

file-sharing programs, like the one used in Layton, and

closed file-sharing programs, like Gigatribe. In an open

4
The Government makes a third argument that the file
selection feature of Gigatribe renders its use an act
materially greater than use of the program in Layton. It
contends that users of Gigatribe are more likely than users
of other programs to know the content of the files they are
downloading because they are able to visually preview and
individually select files to download. Because McManus
does not contend that he was not in possession of child
pornography or that he downloaded such files
unintentionally, this feature of Gigatribe is irrelevant to
our analysis.
10
program, if a user chooses to create a shared folder, its

contents are available to all other users. In Gigatribe,

if a user chooses to create a shared folder, its contents

are available only to those other users with whom he has

become “friends,” either by inviting them or by accepting

invitations from them.

Although the Government does not elaborate on its

proposition, it seems to be arguing that no Gigatribe user

would become friends with another user unless he believed

that the other user would allow access to his files. The

district court relied on this implied reasoning to conclude

that the five-level enhancement was warranted because

“you’re inviting people in and you’re sharing so that they

will let you see their stuff, you show them your stuff.”

J.A. 52-53. Affirming the district court’s reliance on the

Government’s inherent reciprocity argument would establish

a per se rule applying the five-level enhancement to every

Gigatribe distribution offense absent any evidence of the

particular defendant’s state of mind. 5 We decline to adopt

the Government’s proposed rule.

5
At oral argument the Government contended that its
position would not result in a per se application of the
five-level enhancement. However, it was unable to explain
how its proposed rule could be individualized.
11
 i.

Because § 2G2.2(b)(3)(B) requires proof of an

individual defendant’s mental state to trigger the five-

level enhancement, a per se rule is inappropriate. Beyond

its attempt to evade § (B)’s requirement of individualized

proof, the Government’s proposed per se rule is simply

unsupported by the facts.

Although we have not addressed this question, both the

Tenth and Eleventh Circuits have recognized the fallacy of

inherent-reciprocity reasoning in cases involving open

file-sharing programs. In United States v. Geiner, the

Tenth Circuit held that because file-sharing programs

generally allow users to retrieve files without sharing any

files of their own, a defendant who distributes child

pornography using a file-sharing network “does not

necessarily do so in exchange for similar files,

particularly when the defendant understands that these

files are available even if he chooses not to share his

own.” 498 F.3d 1104, 1111 (10th Cir. 2007). Geiner

emphasized the Guideline’s requirement that distribution be

“for the receipt or expectation of receipt,” and concluded

that expectation must be an individualized factual

determination. Id.

12
 In United States v. Spriggs, the Eleventh Circuit held

that a user’s mere “hope that a peer would reciprocate his

generosity” was insufficient to show distribution with an

expectation of receipt “[w]ithout evidence that [that user]

and another user conditioned their decisions to share their

illicit image collections on a return promise to share

files.” 666 F.3d 1284, 1288 (11th Cir. 2012). In United

States v. Vadnais, the Eleventh Circuit held that “logic

compels the conclusion that more [than use] must be

required for the five-level enhancement,” because it

“require[s] that the distribution occur for a specified

purpose.” 667 F.3d 1206, 1209 (11th Cir. 2012). Vadnais

held that inferring an expectation of receipt from mere use

is unsupported by the operation of an open file-sharing

program because “freeloading” is possible. Id. As Geiner

recognized, knowing use of a sharing feature proves only an

intent to distribute because a user does “not need to share

child pornography to get pornography.” Vadnais, 667 F.3d

at 1210. A knowledgeable file-share user “ha[s] no

expectation of receiving any more child pornography merely

by sharing his files” because he understands that he does

not need to make his files available to gain access to

those of other users. Id.

13
 ii.

Contrary to the Government’s contention, Gigatribe’s

invitation and acceptance feature does not alter this

analysis. A per se application of the five-level

enhancement might be appropriate, for example, in a case

where a defendant used a website which permitted users to

download a file of child pornography only if they first

submitted a file of child pornography that would be

redistributed through the same mechanism to other users.

In such a program, use of the website would necessarily

satisfy all of the requirements of § (B) because users

would knowingly distribute pornography, necessarily intend

to receive pornography in return, and reasonably expect to

receive pornography in exchange for their pornography

because that would be the only purpose of the system. This

fictitious system is inherently reciprocal in a way that

would allow per se application of the Guideline

enhancement. The same cannot be said for Gigatribe.

The undisputed facts found by the district court show

that within the Gigatribe system: 1) the existence and

content of a user’s files are unknown to other users absent

direct communication, and 2) a user does not necessarily

have access to another user’s files merely because they are

14
Gigatribe “friends.” The Government’s own evidence shows

that:

A user can prevent anyone from seeing what they
share with other users and can choose to share
everything with all users or just with specific
users .... [I]nformation including thumbnails of
the pictures and/or videos on the ... users [sic]
system are ... only sent if the user on the other
end has physically either invited the user or
accepted to invite of the use [sic]. Users make
several active decisions that contribute to the
distribution of the files. First, they make an
active decision to download and setup a file
sharing program. Second, they actively set up a
shared folder and make a choice on the folder and
contents that they share. Third, they make an
active decision to open and allow access to other
users they ‘friend’ to see what they have .... A
user can scroll through the available files that
another user has allowed them to see.

Appellee’s Br. 3-4.

It is apparent that Gigatribe users can freeload in

the same manner as users of open file-sharing programs. A

Gigatribe user can maintain an account and invite and

accept friends without sharing files. A user can also make

files available only to selected friends and can password

protect certain files within folders that are otherwise

accessible to friends. Moreover, a user’s files are not

visible to any other user who is not that user’s friend,

and no user has any reason to assume that any other user

possesses shared files which he would consider valuable

because Gigatribe can host any type of music, picture, or

15
video file. Based on these features, we must conclude that

a user who understands the basic operation of the Gigatribe

program can have no reasonable expectation of gaining

access to pornographic files or any other thing of value

solely because he creates a shared folder populated with

files containing child pornography.

Although it is perhaps more likely that a Gigatribe

user, as compared to the user of an open system, would only

become friends with, and therefore distribute files to,

other users who he believed possessed pornographic files

and were willing to exchange them, the Government has

presented no evidence to support this supposition. It

submitted no evidence that McManus distributed his files to

any user as a barter or trade, that Gigatribe enforces a

rule that friends must make files available to each other,

or that a strong custom has arisen within the Gigatribe

community to that same effect. The Government submitted no

evidence that McManus screened possible friends based on

their likelihood of possessing valuable files before

inviting them or accepting their invitations. Because the

contents and even the existence of a Gigatribe user’s

shared files are unknown, the only way a user could

accomplish such screening would be by communicating

directly with other users. If users do in fact communicate

16
in this manner, then the Government should be able to

gather actual individualized evidence to satisfy the second

element of § (B) by seizing defendants’ chat logs with

undercover agents and other users.

The Government’s argument is purely speculative, and

all but the most superficial investigation demonstrates

that the speculation is unreasonable. Even the way in

which the FBI agent acquired the proof for McManus’s

underlying conviction in this case undercuts the

Government’s inherent-reciprocity claim. The agent was

able to download pornography from McManus without supplying

any like files in return, and there is no evidence that the

agent represented to McManus that he had files and was

willing to trade. Whether or not Gigatribe users routinely

distribute child pornography gratuitously, it is clearly

possible based on the features of the system that a

Gigatribe user could distribute his files without any

reasonable expectation of receiving anything of value in

exchange. Therefore, the proposed per se rule is

inappropriate.

B.

Because we decline to apply the Government’s proposed

per se rule, we must vacate McManus’s sentence unless the

Government submitted sufficient individualized evidence of

17
McManus’s intent to distribute his pornographic materials

in expectation of receipt of a thing of value. The only

individualized evidence that the Government offers is that

McManus “knew of the file-sharing features of Gigatribe,”

when he used the program to acquire and maintain child

pornography files and that “he was aware that files

utilized in Gigatribe could be shared with other Gigatribe

users.” Appellee’s Br. 10. This evidence proves only the

first element of § (B) and is only sufficient to trigger §

(F), an enhancement that McManus concedes is appropriate.

The Government failed to carry its burden. The

district court improperly applied the five-level

enhancement, resulting in improper calculation of McManus’s

sentencing range. The district court’s reliance on an

improperly calculated sentencing range constitutes

significant procedural error and McManus’s sentence is

subject to vacation unless the error was harmless.

V.

McManus’s properly calculated offense level of 30

would have generated a Guideline range of 97 to 120 months’

imprisonment. Although the district court’s 72-month

sentence is well below the bottom of this corrected range,

we cannot say with certainty that the district court would

18
not have sentenced McManus to even less time in custody if

it had used the proper starting point. See Mehta, 594 F.3d

at 284. Therefore, we cannot say that the error was

harmless and remand for resentencing is necessary. Because

we vacate McManus’s sentence and remand on the ground that

it is prejudicially procedurally unreasonable, we need not

address its substantive reasonableness.

VI.

For the foregoing reasons, the district court’s sentence is

VACATED AND REMANDED FOR RESENTENCING.

19