UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4707
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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).”
3
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
4
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)
5
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.
6
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
7