NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 14a0783n.06
Case No. 13-4219
FILED
Oct 15, 2014
DEBORAH S. HUNT, Clerk
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, )
) ON APPEAL FROM THE UNITED
v. ) STATES DISTRICT COURT FOR
) THE NORTHERN DISTRICT OF
RICHARD J. MIEZIN, ) OHIO
)
Defendant-Appellant. )
)
) OPINION
BEFORE: DAUGHTREY, ROGERS, and DONALD, Circuit Judges.
BERNICE BOUIE DONALD, Circuit Judge. Following a guilty plea on a child-
pornography charge, the district court sentenced Richard J. Miezin to 168 months’
imprisonment. Miezin appeals his sentence on two grounds: (1) that the Government breached
the plea agreement in its sentencing memorandum and at the sentencing hearing by arguing for a
sentencing enhancement that was contrary to the terms of the agreement; and (2) that the district
court erred in applying the enhancement. For the reasons discussed below, we AFFIRM
Miezin’s 168-month sentence.
Case No. 13-4219
United States v. Miezin
I. BACKGROUND
A. Factual Background
Using the internet, Miezin repeatedly downloaded a peer-to-peer file-sharing program,
known as “Gigatribe,” to communicate with other individuals involved with child pornography
and to exchange computer files containing the same. Gigatribe allows its users to create their
own private network of contacts, and file sharing is limited to those users who are included in the
user’s private network. Users can add other users to their network via private invitations that, if
accepted, allow both the inviter and the invitee to access one another’s shared files. Gigatribe
users can also use the program to chat with other users and to share image files. Through chat
conversations or by viewing and selecting from other users’ shared folders, Miezin used
Gigatribe to receive and distribute visual depictions of prepubescent males engaged in oral-to-
genital contact, anal intercourse, digital penetration, and the lascivious exhibition of their
genitals. Miezin would then delete Gigatribe and the images from his computer until the next
time he wanted to access child pornography.
On eleven separate occasions from April 27, 2010, through February 25, 2011,
undercover federal law-enforcement officers downloaded image and video files depicting real
minors engaged in sexually explicit conduct from Miezin’s computer. On April 7, 2011, officers
executed a search warrant at Miezin’s residence and seized his laptop computer. A forensic
analysis of the laptop’s hard drive indicated that it contained approximately thirty-five
photographs and seventeen video files (equivalent to 1,275 images) depicting prepubescent
males engaged in sexually explicit conduct.
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B. Procedural History
On January 8, 2013, a grand jury in the Northern District of Ohio returned an indictment
against Miezin on two counts: (1) knowingly distributing computer files containing visual
depictions of real minors engaged in sexually explicit conduct, in violation of 18 U.S.C.
§ 2252(a)(2) (“Count One”); and (2) knowingly making false statements to a law-enforcement
official, in violation of 18 U.S.C. § 1001(a)(2) (“Count Two”). On May 7, 2013, Miezin entered
into a written plea agreement under which he pled guilty to Count One and the Government
agreed to move to dismiss Count Two. The plea agreement contained the following stipulation
as to the appropriate offense-level computation under the United States Sentencing Guidelines
(“U.S.S.G.”):
Base Offense Level 22 § 2G2.2(a)(2)
Material involved a prepubescent minor 2 § 2G2.2(b)(2)
Distribution 2 § 2G2.2(b)(3)(F)
Sadistic/masochistic conduct or depictions of violence 4 § 2G2.2(b)(4)
Use of computer 2 § 2G2.2(b)(6)
600 or more images 5 § 2G2.2(b)(7)(B)
Subtotal Before Acceptance of Responsibility 37
The plea agreement also contained the following explanatory provision regarding the
distribution computation:
For purposes of determining Defendant’s statutory penalty and
imprisonment range under the United States Sentencing Guidelines, Defendant
and the Government agree that the offense involved distribution, but the
distribution was not (1) for pecuniary gain; (2) for the receipt or expectation of a
thing of value; (3) to a minor; (4) done to persuade, induce, entice, or coerce a
minor to engage in illegal activity; or (5) intended to persuade, induce, entice,
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United States v. Miezin
coerce, or facilitate the travel of a minor engaged in prohibited sexual conduct.
Therefore, a two-level increase is applicable pursuant to U.S.S.G.
§ 2G2.2(b)(3)(F).
Assuming a three-level reduction for acceptance of responsibility, Miezin’s offense level under
the agreement would be 34, with a criminal history category of I, thereby yielding an advisory
Guidelines range of 151-188 months’ imprisonment.
A U.S. Probation Officer submitted a final presentence investigation report (“PSR”) on
August 21, 2013. The offense-level computations in the PSR reflected those in the plea
agreement except as to the two-level enhancement for distribution under § 2G2.2(b)(3)(F).
Unlike the plea agreement, the PSR recommended a five-level “thing of value” enhancement
under § 2G2.2(b)(3)(B) for “distribution for the receipt, or expectation of receipt, of a thing of
value, but not for pecuniary gain.” In support of this recommendation, the PSR emphasized that
Miezin “intentionally sought out child pornography material through chat conversations or by
viewing other Gigatribe users[’] shared folders and selecting images and video files that fell into
these categories.” Accordingly, the PSR recommended a total offense level of 37, assuming a
three-level reduction for acceptance of responsibility, and a criminal history category of I,
thereby yielding an advisory Guidelines range of 210-240 months’ imprisonment.
On August 22, 2013, Miezin filed a sentencing memorandum requesting a downward
variance in the advisory Guidelines range of 151-188 months, in which he detailed his personal
background, his efforts at post-offense rehabilitation, and his strong familial and social support
system. On September 20, 2013, the Government responded with a sentencing memorandum
opposing Miezin’s request for a downward variance and analyzing the factors set forth in
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18 U.S.C. § 3553(a).1 Specifically, in support of its argument that a “lengthy” sentence in this
case would be necessary to effect adequate deterrence, the Government footnoted a portion of
the application notes accompanying U.S.S.G. § 2G2.2(b)(3)(B). The Government argued that
“[t]he harm caused by child pornography is not because money is exchanged but because
children are the commodity that is bargained and exchanged.”
The district court conducted a sentencing hearing on September 26, 2013. At the hearing,
the court acknowledged the parties’ agreement but accepted the PSR’s recommendation that a
five-level enhancement should be applied pursuant to U.S.S.G. § 2G2.2(b)(3)(B). (See R. 43 at
PageID 368 (“The five levels will apply vis-à-vis the two. I will acknowledge the parties’
agreement, but . . . the recommendation of the parties is not binding on the court . . . .”).)
Specifically, the court rejected Miezin’s argument that an explicit quid pro quo—not merely
hoping to receive child pornography as a barter—is necessary in order for the § 2G2.2(b)(3)(B)
enhancement to apply. The court highlighted Miezin’s Gigatribe chat conversations in which he
asked for prohibited pictures. The court calculated an advisory Guidelines range of 210 to 262
months, while acknowledging that the parties’ agreement called for a range of 151 to 188
months.
Before overruling Miezin’s objection, the court solicited the Government’s view as to
why the two-level enhancement set forth in the plea agreement was appropriate. The
Government responded:
1
The Government’s sentencing memorandum highlights the following excerpt of a Gigatribe chat conversation from
January 21, 2010, in which Miezin, using the screen name “jakedoby,” sent and requested illegal images:
babyboyfucker19: any baby pics
jakedoby: Sends image file ending in 1349205_3, Prepubescent male, naked
from the waist down lying on his back while a penis is inserted
into his anus.
babyboyfucker19: mmm nice reminds me of last baby boy I fucked
jakedoby: nice and tight
babyboyfucker19: it was only 2hours ago I fucked a baby
jakedoby: any pics
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Your Honor, I would first indicate that as the court noted, I did enter into a
plea agreement where I agreed to recommend a two-level distribution
enhancement.
Factually, I would disagree with defense counsel’s representation that this
is like all other peer-to-peer cases. Gigatribe is very different than other peer-to-
peer networks, in that it is an exclusive invitation[-]only network that is created
by the user, which suggest[s] some level of vetting that would occur beforehand
before you would allow someone into your inner circle where you intended to
share child pornography.
I believe that in our pretrial discussions and in our negotiations, there was
a discussion similar to the one raised by defense counsel as to whether or not
there was a direct quid pro quo type of conversation.
And I would agree with the representations of the court that clearly he’s
sending out images, and there is that one particular reference of asking for
images, specifically asking for images of the child rape.
It was I would confess merely a negotiation tactic in order to agree to the
two levels rather than the five levels, feeling that it was not as clear cut as some of
the cases that I have seen . . . where there is a more specific discussion about “If
you send me this,” or “If you give me your password to your images, I will give
you my password to my images.” Although I can respectfully see the position of
pretrial and the comments of the court, I’ve made those same observations myself.
Prior to imposing Miezin’s sentence, the district court had the following exchange with
the Government:
[THE GOVERNMENT]: . . . we’re asking for a sentence in the guideline
range as calculated by the court.
THE COURT: Just so it’s clear, you’re asking for a sentence within the
parties’ plea agreement, 34, 151 months to 180 months?
[THE GOVERNMENT]: Yes, Your Honor. I entered into that agreement
and I stand by my agreement.
The court sentenced Miezin to 168 months’ imprisonment, noting that the sentence was “within
the range that the parties have computed, the 151 to 188,” and “a variance below the advisory
guideline range that had been originally set forth in this case.”
The district court entered final judgment on October 10, 2013. Miezin timely appealed
his 168-month sentence on October 17, 2013.
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United States v. Miezin
II. ANALYSIS
We first address Miezin’s argument that the Government breached the plea agreement.
We then address Miezin’s argument that the district court erred in applying a two-level “thing of
value” enhancement.
A. Breach of the Plea Agreement
Miezin first argues that the Government breached the plea agreement. The law regarding
alleged breaches of plea agreements is well settled in the Sixth Circuit. As summarized in
United States v. Moncivais:
The construction of a plea agreement “presents a question of law which
this court reviews de novo.” United States v. Fitch, 282 F.3d 364, 366 (6th Cir.
2002) (citing Lancaster Glass Corp. v. Philips ECG, Inc., 835 F.2d 652, 658
(6th Cir. 1987)). Plea agreements are contractual in nature, and as such, courts
are guided by general principles of contract interpretation when construing plea
agreements. See United States v. Mandell, 905 F.2d 970, 973 (6th Cir. 1990).
Plea agreements are to be enforced according to their terms. “[W]hen a plea rests
in any significant degree on a promise or agreement of the prosecutor, so that it
can be said to be part of the inducement or consideration, such promise must be
fulfilled.” Santobello v. New York, 404 U.S. 257, 262 . . . (1971). Because a
defendant obtains a plea agreement only at the expense of his constitutional
rights, “prosecutors are held to meticulous standards of performance.” United
States v. Vaval, 404 F.3d 144, 152-53 (2d Cir. 2005). “Satisfying this obligation
requires more than lip service on a prosecutor’s part. The Santobello rule
‘proscribes not only explicit repudiation of the government’s assurances, but must
in the interests of fairness be read to forbid end-runs around them.’” United
States v. Saxena, 229 F.3d 1, 6 (1st Cir. 2000) (brackets removed) (quoting United
States v. Voccola, 600 F. Supp. 1534, 1537 (D.R.I. 1985)). The Court will thus
construe “[a]mbiguities in a plea agreement . . . against the government.” Fitch,
282 F.3d at 367 (citing United States v. Randolph, 230 F.3d 243, 248 (6th Cir.
2000)).
492 F.3d 652, 662 (6th Cir. 2007). “Questions regarding the content of the plea agreement are
questions of fact, which this court reviews for clear error. Whether the government’s conduct
violated the agreement is a question of law, to be reviewed de novo.” United States v. Fields,
763 F.3d 443, 453 (6th Cir. 2014) (citation omitted).
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1. Sentencing Memorandum
Miezin argues that the Government breached the plea agreement in its sentencing
memorandum by arguing that Miezin distributed child pornography with the expectation of
receiving a thing of value in return—i.e., more child pornography. The Government responds
that its sentencing memorandum—which it submitted in opposition to Miezin’s request for a
downward variance—did not request a five-level “thing of value” enhancement under U.S.S.G.
§ 2G2.2(b)(3)(B). Specifically, the Government contends that its citation to § 2G2.2(b)(3)(B) in
a footnote “was only . . . for definitional purposes” and that “the government’s use of a footnote
in its sentencing memorandum to define statutory terms does not constitute an argument in favor
of the five-level enhancement.” (Appellee’s Br. at 18.) The record supports the Government’s
argument.
“In determining whether a plea agreement has been broken, the court should look to what
the defendant reasonably understood when he entered into the agreement. The most persuasive
evidence of what a defendant reasonably appreciated as his bargain is found in the plain
language of the court-approved agreement.” Fields, 763 F.3d at 453 (citations omitted) (quoting
United States v. Herrera, 928 F.2d 769, 771 (6th Cir. 1991); United States v. Phibbs, 999 F.2d
1053, 1081 (6th Cir. 1993)) (internal quotation marks omitted). The relevant portion of the plea
agreement in this case states that “[Miezin] and the Government agree that the offense involved
distribution, but the distribution was not . . . for the receipt or expectation of a thing of value.”
This language indicates that Miezin expected the Government to request a two-level
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enhancement under § 2G2.2(b)(3)(F), rather than a five-level enhancement under
§ 2G2.2(b)(3)(B).2
The Government’s sentencing memorandum did not breach this portion of the agreement.
At no point in the memorandum did the Government suggest that a five-level enhancement under
§ 2G2.2(b)(3)(B) was the appropriate course for the district court to take. Rather, in analyzing
the deterrence factor set forth in 18 U.S.C. § 3553(a)(2)(B), the Government cited
§ 2G2.2(b)(3)(B) by reference. There is no indication anywhere in the memorandum that the
Government was asking the district court to apply a five-level enhancement contrary to the two-
level enhancement to which the parties agreed. Cf. Moncivais, 492 F.3d at 665 (“Because there
is no indication that the government recommended to the probation office that Defendant receive
an enhanced sentence, we hold that the government did not violate its obligations under the
Agreement. This is true notwithstanding the fact that the government provided factual
information to the probation office that caused that office to recommend that the district court
enhance Defendant’s sentence.”). Instead, the Government was responding to Miezin’s request
for a downward variance, seeking to ensure that he did not receive a sentence tantamount to “a
mere slap on the wrist,” but rather a sentence within “the properly calculated Guidelines
range”—i.e., the agreed-upon range of 151-188 months.3 (Appellee’s Br. at 21.) Cf. United
States v. Moschella, 727 F.3d 888, 892 (9th Cir. 2013) (“[T]he prosecutor’s sentencing
arguments were a fair response to Defendant’s request for a downward variance from the low-
2
Notably, however, the plea agreement explicitly states that “[t]he parties have no agreement about the sentencing
range to be used or sentence to be imposed in this case, other than to stipulate to the computation of the advisory
Sentencing Guidelines offense level. Each party is free to recommend whatever sentence it believes to be
appropriate.”
3
The Government’s unequivocal statements at the sentencing hearing bolster our conclusion that the Government
was seeking to enforce the agreed-upon range of 151-188 months. (See, e.g., R. 43 at PageID 462 (“THE COURT:
Just so it’s clear, you’re asking for a sentence within the parties’ plea agreement, 34, 151 months to 180 months?
[THE GOVERNMENT]: Yes, Your Honor.”).)
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end of the advisory Guidelines range. . . . [I]n arguing against a downward variance, the
prosecutor affirmatively recommended . . . that the district court impose the agreed-upon . . .
sentence.”).
Accordingly, the Government’s sentencing memorandum did not breach the plea
agreement.
2. Sentencing Hearing
Miezin also argues that the Government breached the plea agreement at the sentencing
hearing. Specifically, he asserts that the Government should not have: (1) argued that he should
receive a harsher sentence because he distributed child pornography with the expectation of
receiving it in return; (2) agreed with the district judge that a five-level enhancement under
§ 2G2.2(b)(3)(B) was appropriate; and (3) stated “reluctantly” that the Government was bound
by its agreement to a two-level enhancement. The Government responds that the probation
department—not the Government—requested a five-level enhancement. The Government
further contends that it disagreed with Miezin’s argument that an explicit quid pro quo is
required for a five-level enhancement to apply under § 2G2.2(b)(3)(B) only after the district
court asked it to weigh in, and after emphasizing that the Government was bound by its
agreement to a two-level enhancement. The Government’s argument prevails.
The following exchange at the sentencing hearing indicates that the Government
unequivocally supported the recommendations in the plea agreement:
[THE GOVERNMENT]: Your Honor, the government’s position in this
case is that Mr. Miezin deserves a guideline sentence, not just based on the
guidelines that apply here, but certainly in the analysis of the 3553(a) factors and
the nature of what he did here and how he contributed to the perpetuation of the
abuses of those kids.
For that reason, we’re asking for a sentence in the guideline range as
calculated by the court.
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THE COURT: Just so it’s clear, you’re asking for a sentence within the
parties’ plea agreement, 34, 151 months to 180 months?
[THE GOVERNMENT]: Yes, Your Honor. I entered into that agreement
and I stand by my agreement.
It is difficult to imagine a more explicit endorsement of the advisory Guidelines range calculated
in the plea agreement.
This case is similar to United States v. Mason, in which the defendant argued “that the
government violated the plea agreement by discussing the sentencing-recommendation provision
of the plea agreement in a way that, in effect, urged the district court to disregard it.”
410 F. App’x 881, 889 (6th Cir. 2010). In that case, the prosecutor emphasized at the sentencing
hearing that the negotiated sentencing range was “significantly below the advisory guideline
range” and involved a “market motive,” but noted that the government would “stick by [the
negotiated sentencing range] even though arguably we might have grounds not to.” Id. at 885.
This Court found no breach, emphasizing that the full sentencing colloquy did not demonstrate
“that the government was attempting to avoid upholding its part of the bargain.” Id. at 890. To
the contrary, the government in Mason “explicitly recommended” a sentence within the advisory
Guidelines range to which the parties had agreed. Id.
Similarly here, although the Government acknowledged the potential appropriateness of a
five-level enhancement under § 2G2.2(b)(3)(B) (see R. 43 at PageID 367 (“I can respectfully see
the position of pretrial and the comments of the court”)), it nevertheless explained the reasoning
behind its agreement to a two-level enhancement and requested a sentence within the resultant
advisory Guidelines range. (See id. (“It was I would confess merely a negotiation tactic in order
to agree to the two levels rather than the five levels, feeling that it was not as clear cut as some of
the cases that I have seen . . . .”); PageID 462 (“I entered into that agreement and I stand by my
agreement.”).)
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Contrary to Miezin’s position, the Government’s explanation of the negotiating process
indicates that it supported the two-level enhancement and did not believe that Miezin’s case was
a “clear cut” candidate for a five-level enhancement. Unlike in United States v. Canada,
960 F.2d 263, 270 (1st Cir. 1992), where the prosecutor “conspicuously undermin[ed] its agreed
position,” “[t]he prosecutor’s statements in this case do not rise to the level of ‘inject[ing]
material reservations about the agreement.’”4 Mason, 410 F. App’x at 890 (second alteration in
original) (quoting Canada, 960 F.2d at 270); see also Moschella, 727 F.3d at 892 (distinguishing
Canada in that the prosecutor recommended the agreed-upon range and made arguments at
sentencing that “were directed to the specific objective identified in and permitted by the plea
agreement.”).
Accordingly, the Government did not breach the plea agreement at Miezin’s sentencing
hearing.
B. Application of the Two-Level “Thing of Value” Enhancement
We review challenges to the procedural and substantive reasonableness of a criminal
sentence under the deferential abuse-of-discretion standard. United States v. Kamper, 748 F.3d
728, 739 (6th Cir. 2014); Gall v. United States, 552 U.S. 38, 51 (2007). To determine whether a
sentence is procedurally reasonable, we review, inter alia, “whether the district court properly
calculated the Guidelines range.” United States v. Battaglia, 624 F.3d 348, 350-51 (6th Cir.
2010). “If the district court misinterprets the Guidelines or miscalculates the Guidelines range,
then the resulting sentence is procedurally unreasonable.” United States v. Stubblefield, 682 F.3d
4
In Canada, the plea agreement required the government to recommend that the court impose a 36-month sentence.
960 F.2d at 268. At the sentencing hearing, however, the prosecutor never recommended a 36-month sentence and
made comments undercutting such a recommendation, such as, “It is important, the government feels, that a very
strong message be sent by the Court.” Id. at 269. The court in Canada stated that, had the government affirmatively
stated its recommendation of a 36-month sentence, “and had it refrained from conspicuously undermining its agreed
position, we would have accepted this, without more, as constituting minimal fulfillment of its obligations.” Id. at
270.
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502, 510 (6th Cir. 2012). Miezin challenges only the procedural reasonableness of his sentence
by asserting that the district court erroneously applied a five-level enhancement under
§ 2G2.2(b)(3)(B). “The court’s legal interpretation of the Guidelines [is] reviewed de novo, but
its factual findings are reviewed under the clearly erroneous standard.” Id. (quoting Battaglia,
624 F.3d at 351) (internal quotation marks omitted).
Sentencing factors must be established by a preponderance of the evidence. United
States v. Ross, 703 F.3d 856, 884 (6th Cir. 2012). Whether the five-level “thing of value”
enhancement under § 2G2.2(b)(3)(B) applies to Miezin’s case is a factual determination subject
to clear-error review. See United States v. Mabee, 765 F.3d 666, 674-75 (6th Cir. 2014)
(applying the clear-error standard to a district court’s application of the § 2G2.2(b)(3)(B)
enhancement); see also United States v. Burman, 666 F.3d 1113, 1118-19 (8th Cir. 2012)
(upholding on clear-error review a district court’s application of the § 2G2.2(b)(3)(B)
enhancement where the defendant made extensive use of the Gigatribe program). In conducting
this review, “we examine whether there is evidence, direct or circumstantial, that [the defendant]
reasonably believed that he would receive something of value by making his child pornography
files available for distribution through a peer-to-peer network.” Mabee, 765 F.3d at 674
(alteration in original) (quoting United States v. Binney, 562 F. App’x 376, 379 (6th Cir. 2014))
(internal quotation marks omitted). The § 2G2.2(b)(3)(B) enhancement “does not apply merely
because a defendant used a file-sharing program, but extensive use of the program resulting in
several hundred images will weigh in favor of the enhancement.” Id. (quoting United States v.
Emmons, 524 F. App’x 995, 999 (6th Cir. 2013)) (internal quotation marks omitted).
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Miezin argues that the district court improperly applied the five-level enhancement by
finding that, in distributing child pornography, he expected—not merely hoped—that he would
receive it in return. The Government responds that:
Miezin’s use of Gigatribe to distribute child pornography, to store it in his
own extensive files, to invite others to share his files, and to ask for child
pornography files in return constitutes the direct and circumstantial evidence
necessary to show that he reasonably believed and expected that he would receive
something of value by making his child pornography files available for
distribution.
(Appellee’s Br. at 29.) The Government’s argument prevails.
The Sentencing Guidelines prescribe a base offense level of 22 for a violation of
18 U.S.C. § 2252(a)(2). See U.S.S.G. § 2G2.2(a)(2); Battaglia, 624 F.3d at 351. A sentencing
court may apply a five-level enhancement if the offense involved “[d]istribution 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). According to the law of this Circuit, “[t]hat five-level enhancement applies to
trading or attempted trading of child pornography—i.e., it applies where a defendant distributes
child pornography because he or she has received child pornography or expects to receive child
pornography in return.” Battaglia, 624 F.3d at 351 (citing U.S.S.G. § 2G2.2(b)(3)(B) cmt. n.1).
Analogous Sixth Circuit cases demonstrate that the district court did not clearly err when it
applied the five-level enhancement in Miezin’s case.
In United States v. Mauck, the Court considered whether the district court improperly
applied the five-level enhancement to a defendant who used the social networking site
“Mbuzzy.com” to send and receive sexually explicit images of children. 469 F. App’x 424, 426-
27 (6th Cir. 2012). Specifically, the defendant in Mauck engaged in online conversations with
undercover investigators over the course of several months regarding the exchange of sexually
explicit pictures of young children. The Court found these facts “more than sufficient to support
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the court’s finding that [the defendant] expected to receive images in return for the images he
sent,” noting that “[t]he Guidelines’ definition of ‘thing of value’ is very broad.” Id. at 427.
Similarly, in United States v. Hardin, the Court examined a challenge to the application of the
§ 2G2.2(b)(3)(B) enhancement. 437 F. App’x 469, 471 (6th Cir. 2011). In that case, the
defendant used his work computer to access a peer-to-peer file-sharing program called
“LimeWire,” and downloaded fourteen videos and several hundred pictures of children engaged
in sexual activity. Id. The computer also contained several series of chats in which the
defendant solicited sexual contact with children. Id. The Court held that the defendant’s
“sophisticated and extensive use of LimeWire was sufficient . . . to support the district court’s
imposition of the five-level enhancement in question.” Id. at 474; see also Burman, 666 F.3d at
1119 (noting that the defendant committed his offenses “using a substantial level of technical
sophistication.”).
Miezin’s case is indistinguishable from these cases. His illegal activity on Gigatribe
spanned the course of ten months and, on eleven separate occasions, undercover federal law-
enforcement officers accessed depictions of minors engaged in sexually explicit conduct from his
computer. In total, agents recovered thirty-five photographs and seventeen videos (equivalent to
1,275 images) from Miezin’s computer. Miezin also engaged in numerous Gigatribe chat
sessions in which he distributed and requested illegal depictions of minors engaging in sexual
activity. As noted by the district court at the sentencing hearing:
This case is a bit different because the defendant is actively discussing by
chats the sharing of pictures. . . . [O]ne of the individuals that the defendant was
communicating with via chat said, “It was only two hours ago that –” and I will
delete the term “– a baby.”
And the defendant . . . responds, “Any pics?” He’s asking for pics. . . .
[T]he defendant is discussing his likes and dislikes. And during the course of that
conversation, he sends images of two prepubescent males naked on a bed . . . .
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In light of the foregoing evidence, the district court’s application of the five-level “thing of
value” enhancement under § 2G2.2(b)(3)(B) was not clear error. Cf. Mabee, 765 F.3d at 675
(upholding the § 2G2.2(b)(3)(B) enhancement even where the defendant “did not communicate
with other people as to the availability of the files” (emphasis added) (internal quotation marks
omitted)). The record amply supported the district court’s decision.
Miezin’s citation to authority from our sister circuits does not demand a contrary
conclusion. In United States v. McManus, for example, the Fourth Circuit rejected a per se rule
that the mere use of a peer-to-peer file-sharing system like Gigatribe, without more, is sufficient
evidence of an expectation of receipt of a thing of value under § 2G2.2(b)(3)(B). 734 F.3d 315,
320-22 (4th Cir. 2013) (emphasizing that “[t]he Government submitted no evidence that [the
defendant] screened possible friends based on their likelihood of possessing valuable files before
inviting them or accepting their invitations.”); see also United States v. Spriggs, 666 F.3d 1284,
1288 (11th Cir. 2012) (“[A defendant’s] hope that a peer would reciprocate his generosity does
not amount to a transaction conducted for ‘valuable consideration.’”); United States v. Vadnais,
667 F.32d 1206, 1209 (11th Cir. 2012) (“There must be some other evidence, whether direct or
circumstantial, that a defendant reasonably believed that he would receive something of value by
making his child pornography files available for distribution through a peer-to-peer network.”).
But the rule in the Sixth Circuit also states that the five-level enhancement does not apply merely
because a defendant used a file-sharing program. See Mabee, 765 F.3d at 674 (“Sharing child
pornography on a file-sharing program alone does not trigger the trading enhancement.”). This
Court instead determines whether the enhancement is appropriate on a case-by-case basis.
Hardin, 437 F. App’x at 474. The inquiry is whether the defendant’s “sophisticated and
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Case No. 13-4219
United States v. Miezin
extensive” use of the file-sharing program in question subjects him to the enhancement.5 Id. In
Miezin’s case, we find that it does.
Accordingly, the district court did not commit clear error when it applied the five-level
“thing of value” enhancement to Miezin’s sentence pursuant to U.S.S.G. § 2G2.2(b)(3)(B).
III. CONCLUSION
For the foregoing reasons, we AFFIRM Miezin’s 168-month sentence.
5
Recent Eleventh Circuit decisions have tracked this analysis. See, e.g., United States v. Bailey, 494 F. App’x 13,
15 (11th Cir. 2012) (per curiam) (“[T]he district court did not plainly err in applying the five-level sentence
enhancement. The online communication between [the defendant] and the undercover agent, . . . as well as [the
defendant’s] protective file distribution habits, sufficiently link Bailey’s distribution of child pornography with the
expectation of receiving child pornography in return.”); United States v. Cote, 482 F. App’x 373, 376 (11th Cir.
2011) (per curiam) (“[T]he district court did not err by increasing [the defendant’s] offense level by five levels under
§ 2G2.2(b)(3)(B). [The defendant] posted material involving the sexual exploitation of a minor on the Internet and
made it available for others to view. [He] knew how to use Gigatribe to search for and download child pornography,
actually downloaded such material, stored his child pornography in a shared-file area available for Internet
download, and invited others to download his files. . . . [E]ven without an explicit quid pro quo agreement with
another distributor of child pornography, a person may engage in such conduct with the reasonable expectation of an
exchange.”). Moreover, like the defendant in Bailey, Miezin also engaged in so-called “protective” distribution
behavior by repeatedly downloading and deleting Gigatribe as necessary.
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