United States v. Jack Vanlaar

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 13-4707

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

JACK STEVEN VANLAAR,

Defendant - Appellant.

Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Catherine C. Eagles,
District Judge. (1:13-cr-00119-CCE-1)

Submitted: July 29, 2014 Decided: August 4, 2014

Before SHEDD and THACKER, Circuit Judges, and HAMILTON, Senior
Circuit Judge.

Affirmed by unpublished per curiam opinion.

George E. Crump, III, LAW OFFICE OF GEORGE E. CRUMP, III,
Rockingham, North Carolina, for Appellant. Ripley Rand, United
States Attorney, Anand P. Ramaswamy, Assistant United States
Attorney, Greensboro, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

Jack Steven Vanlaar pled guilty, pursuant to a written

plea agreement, to distribution of child pornography, in

violation of 18 U.S.C. §§ 2252A(a)(2)(A), (b)(1) (2012). He

received a 190-month sentence. On appeal, Vanlaar argues that

the district court erred in applying a five-level enhancement

for “distribution for the receipt, or expectation of receipt, of

a thing of value, but not for pecuniary gain” under U.S.

Sentencing Guidelines Manual § 2G2.2(b)(3)(B) (2012). Finding

no error, we affirm the sentence.

We review a sentence for reasonableness, first

ensuring that there is no “significant procedural error,”

including improper calculation of the Guidelines range. Gall v.

United States, 552 U.S. 38, 51 (2007). When evaluating

Guidelines calculations, 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 Guidelines provide multiple categories of

distribution enhancements under USSG § 2G2.2(b)(3). Among these

categories, “distribution for the receipt, or expectation of

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

qualifies for a five-level enhancement under USSG

2
§ 2G2.2(b)(3)(B), 1 while distribution of child pornography that

is not in exchange for money or other things of value and that

is not to minors qualifies for a two-level enhancement under

USSG § 2G2.2(b)(3)(F). 2

The Guidelines define “distribution” as “any act,

including possession with intent to distribute, production,

transmission, advertisement, and transportation, related to the

transfer of material involving the sexual exploitation of a

minor.” USSG § 2G2.2 cmt. n.1. The definition “includes

posting material involving the sexual exploitation of a minor on

a website for public viewing.” Id. We have held that use of a

peer-to-peer file-sharing program qualifies as distribution

under § (F). United States v. Layton, 564 F.3d 330, 335 (4th

Cir. 2009). We reasoned that, by creating and using a shared

folder with knowledge that others could access the child

pornography files within, “a defendant commits an act ‘related

to the transfer of material involving the sexual exploitation of

a minor.’” Id. (quoting USSG § 2G2.2 cmt. n.1).

The Guidelines define “distribution for the receipt,

or expectation of receipt, of a thing of value, but not for

pecuniary gain” as “any transaction, including bartering or

1
Hereafter referred to as “§ (B).”
2
Hereafter referred to as “§ (F).”

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other in-kind transaction that is conducted for a thing of

value, but not for profit.” USSG § 2G2.2 cmt. n.1. As an

example, the Guidelines explain that, “in a case involving the

bartering of child pornographic material, the ‘thing of value’

is the child pornographic material received in exchange for

other child pornographic material bartered in consideration for

the material received.” Id.

Vanlaar does not dispute that he distributed child

pornography under USSG § 2G2.2(b)(3). He argues, however, that

his use of a file-sharing program should have subjected him only

to the two-level enhancement under § (F), not the five-level

enhancement under § (B), absent specific evidence in the record

demonstrating that he shared child pornography files for the

purpose of receiving something in return. Vanlaar’s § (B)

enhancement was based on his use of GigaTribe: a “peer-to-peer”

file sharing system platform on which users or friends of each

other can download and/or share part or all of their files on

their computer depending on the choices they make.

The Government submitted evidence in the form of

GigaTribe chat logs and presented the testimony of the

investigating case agent and a computer forensics expert. In

United States v. McManus, 734 F.3d 315 (4th Cir. 2013), the

court addressed the five-level enhancement challenged here. The

district court did not have the benefit of McManus when it made

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its sentencing decision as it was decided several weeks after

the district court sentenced Vanlaar. We held in McManus that a

§ (B) enhancement requires a showing of “sufficient

individualized evidence of . . . intent to distribute . . .

pornographic materials in expectation of receipt of a thing of

value.” Id. at 322. McManus addressed the GigaTribe

peer-to-peer file-sharing network also at issue here. However,

in McManus, we concluded that there was insufficient evidence to

support the enhancement because the government relied on McManus

sharing his folders only and did not present any actual

individualized evidence to demonstrate intent to distribute

pornographic materials in expectation of receipt of a thing of

value. Id. at 322.

We suggested in McManus what evidence might be

sufficient to support the § B enhancement. The government may

demonstrate individualized intent by showing that a user

“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.” Id. at 322. We noted

that if users communicate with one another to gain access to

files, “then the Government should be able to gather actual

individualized evidence to satisfy the second element of § (B)

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by seizing defendants’ chat logs with undercover agents and

other users.” Id.

The chat logs here demonstrate that Vanlaar shared his

password to his shared folders with the expectation that the

other GigaTribe user would reciprocate and provide a password so

that Vanlaar could view and download the other user’s files.

There are several sequences in the chat logs demonstrating that

Vanlaar intended to share with certain individuals only if he

would receive files in return. The way the GigaTribe system

works, as the district court noted, one user must first provide

a password. The system does not appear to be set up for

simultaneous or enforced reciprocal sharing. It was Vanlaar’s

practice to ask for a password in return when he was the first

to share access. The chat logs also demonstrate that he would

not provide his password to another user when the first user did

not have any files that he wanted to view.

The facts in the record indicate that, at the very

least, Vanlaar had the expectation that in distributing his

child pornography files through GigaTribe that other users would

return the favor and supply him with access to their files as

well. In light of this and in consideration of McManus, we

conclude that the district court did not clearly err in finding

that Vanlaar possessed the requisite expectation necessary for

applying the § (B) enhancement.

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Accordingly, we affirm Vanlaar’s sentence. We

dispense with oral argument because the facts and legal

contentions are adequately presented in the materials before

this court and argument would not aid the decisional process.

AFFIRMED