United States v. Cates

United States Court of Appeals
For the First Circuit

No. 17-1423

UNITED STATES OF AMERICA,

Appellee,

v.

DARRIN CATES,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE

[Hon. John A. Woodcock, Jr., U.S. District Judge]

Before

Howard, Chief Judge,
Selya and Barron, Circuit Judges.

Ronald W. Bourget and Law Offices of Ronald W. Bourget on
brief for appellant.
Halsey B. Frank, United States Attorney, and Julia M. Lipez,
Assistant United States Attorney, on brief for appellee.

July 25, 2018
 SELYA, Circuit Judge. A district court's factual

findings at sentencing — as elsewhere — are typically reviewed for

clear error. Those heights are difficult to scale. See United

States v. Matthews, 749 F.3d 99, 105 (1st Cir. 2014). This case

aptly illustrates the point.

Defendant-appellant Darrin Cates pleaded guilty to

possession of child pornography, some of which depicted minors

under twelve years of age. He now challenges his 120-month prison

sentence. Concluding, as we do, that the defendant's assignments

of error are impuissant, we affirm.

I. BACKGROUND

We rehearse the relevant facts and travel of the case

(reserving some details for discussion in connection with specific

issues). Since "this appeal trails in the wake of a guilty plea,

we draw the facts from the undisputed portions of the presentence

investigation report (PSI Report) . . . and the transcripts of the

sentencing hearings." United States v. Coleman, 884 F.3d 67, 69

(1st Cir. 2018).

At the times relevant hereto, the defendant — a self-

employed website developer — resided in Winslow, Maine, with his

wife and two daughters. In late 2014, the Maine State Police

Computer Crimes Unit (MSPCCU) identified an internet protocol (IP)

address registered to the defendant that had shared files

associated with child pornography on BitTorrent, a peer-to-peer

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file-sharing network. The MSPCCU learned that, between September

15 and October 30, the defendant's IP address shared 36 torrents

(large electronic files containing metadata on smaller files,

which here numbered in the thousands). Based on its investigation,

the MSPCCU obtained a search warrant and executed it at the

defendant's residence on January 9, 2015. During the search, the

defendant admitted to using the BitTorrent network to download

"billions of images and videos" of child pornography over the

preceding three years. The defendant's arrest followed, and a

later forensic analysis of his external hard drive and USB flash

drive revealed 826 pornographic images and 298 pornographic videos

involving children between two and eleven years of age.

In due course, a federal grand jury sitting in the

District of Maine handed up a single-count indictment charging the

defendant with possession of child pornography. See 18 U.S.C.

§§ 2252A(a)(5)(B), 2256(8)(A). On October 23, 2015, the defendant

pleaded guilty.

When received, the PSI Report recommended a base offense

level of 18 and suggested several adjustments. Pertinently, these

included a five-level enhancement for "engag[ing] in a pattern of

activity involving the sexual abuse or exploitation of a minor,"

USSG §2G2.2(b)(5), a two-level enhancement for "knowingly

engag[ing] in distribution" of child pornography, id.

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§2G2.2(b)(3)(F), and a three-level downward adjustment for timely

acceptance of responsibility, see id. §3E1.1.

At the disposition hearing, the district court

considered the proposed adjustments. In mulling whether to apply

the pattern of activity enhancement, the court relied on a series

of MSPCCU interviews limned in the PSI Report. One such interview

was with a woman (whom we shall call Jane Doe). After hearing of

the defendant's arrest, Doe called the police and reported that,

in 1997, the defendant — then her mother's boyfriend — had sexually

abused her when she was seven or eight years old. In an interview

with the MSPCCU two days later (January 13, 2015), Doe related the

details of two sexual encounters. During the first such encounter,

the defendant allegedly forced Doe to sit next to him while he

masturbated. During the second such encounter, the defendant

allegedly forced Doe to perform oral sex on him.

Doe went on to admit that she did not report the

defendant's conduct to the authorities until 2001 (when she was

twelve years old). At that time, she described three incidents in

which the defendant allegedly forced her to touch and rub his penis

with her hand and mouth.1 She said that she had performed these

acts because the defendant had threatened to hit her (as he had

done in the past). In an interview with the police the following

1 During the MSPCCU interview fourteen years later, Doe was
unable to remember how many similar incidents had occurred.

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day, the defendant denied Doe's allegations. No charges were

brought.

When the MSPCCU confronted the defendant regarding Doe's

allegations following his January 2015 arrest, the defendant

initially denied any sexual contact with Doe. Later in the same

interview, though, he described an encounter where Doe had reached

for and touched his penis. According to the defendant, he had

been "embarrassed" by the incident and left the room immediately

after it happened.

On June 13, 2016, the Department of Homeland Security

(DHS) interviewed Doe.2 In this interview, Doe was able to recall

that the defendant forced her to touch his erect penis through his

jeans and, several days later, forced her to watch him masturbate

to pornography and then forced her to perform oral sex on him.

The defendant did not deny Doe's allegations at

sentencing, and the district court imposed a five-level

enhancement for "engag[ing] in a pattern of activity involving the

sexual abuse or exploitation of a minor." The court also imposed

a two-level enhancement for "knowingly engag[ing] in the

distribution of child pornography," finding that the defendant

"distributed child pornography in a shared directory available for

2 DHS's involvement stemmed from its obligation to "provide
training, technical expertise, support, or coordination of child
exploitation investigations, as needed, to cooperating law
enforcement agencies and personnel." 6 U.S.C. § 473(b)(2)(C).

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download over a peer-to-peer network and knew he was doing so."

The court based this finding on, among other things, the premise

that although "there's no evidence that [the defendant] actively

distributed any pornography to anyone . . . [he made] his platform

available for others to receive pornography that was on his

computer."

The court further found that the defendant had timely

accepted responsibility for the offense of conviction and had

neither falsely denied nor frivolously contested any relevant

conduct. Accordingly, the court granted a three-level downward

adjustment for acceptance of responsibility.

As adjusted, the defendant's total offense level was 35.

Coupled with his placement in criminal history category I, this

offense level yielded a guideline sentencing range of 168 to 210

months. The court reviewed the pertinent sentencing factors, see

18 U.S.C. § 3553(a), and attempted to balance the defendant's

conduct against what it perceived to be the aggregate severity of

the child pornography guidelines. In the end, the court imposed

a below-the-range sentence: a 120-month term of immurement. This

timely appeal ensued.

II. ANALYSIS

In this venue, the defendant challenges both the five-

level enhancement for "engag[ing] in a pattern of activity

involving the sexual abuse or exploitation of a minor," USSG

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§2G2.2(b)(5), and the two-level enhancement for "knowingly

engag[ing] in [the] distribution" of child pornography, id.

§2G2.2(b)(3)(F). We examine these challenges separately.

At the outset, we pause to set the standard of review in

place. For preserved claims of sentencing error, "we review the

sentencing court's 'interpretation and application of the

sentencing guidelines' de novo, [and] the court's 'factfinding for

clear error.'" United States v. Ortiz-Carrasco, 863 F.3d 1, 3

(1st Cir. 2017) (quoting United States v. Ruiz-Huertas, 792 F.3d

223, 226 (1st Cir. 2015)). So, too, we review only for clear error

a sentencing court's findings based on inferences drawn from

discerned facts. See United States v. Nuñez, 852 F.3d 141, 144

(1st Cir. 2017). In undertaking appellate review of the

defendant's claims of error, we remain mindful that "the government

bears the burden of proving sentence-enhancing factors by a

preponderance of the evidence." Id.

A. Pattern of Activity.

Through the pattern of activity enhancement, a

defendant's offense level may be increased by five levels "[i]f

the defendant engaged in a pattern of activity involving the sexual

abuse or exploitation of a minor." USSG §2G2.2(b)(5). The

commentary to the sentencing guidelines — which we generally treat

as authoritative unless it conflicts with federal law, see Stinson

v. United States, 508 U.S. 36, 38 (1993) — supplies a gloss. It

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defines a "pattern of activity" as "any combination of two or more

separate instances of the sexual abuse or sexual exploitation of

a minor by the defendant." USSG §2G2.2, cmt. n.1. In this case,

the sentencing court found the requisite pattern of activity based

on Doe's allegations about the 1997 encounters.

The defendant attacks this finding on three fronts. All

of these attacks fail.

1. Catch-22. The defendant's most ferocious attack

posits that he was unable to refute the facts underlying the

pattern of activity enhancement without jeopardizing his offense-

level reduction for acceptance of responsibility. See USSG §3E1.1.

He says that he was trapped in a "catch-22": if he contested Doe's

allegations about the 1997 encounters and did not prevail, he might

be subject not only to the five-level pattern of activity

enhancement but also to the loss of the three-level acceptance of

responsibility reduction. Forcing him to choose between

challenging the enhancement and retaining the reduction, his

thesis runs, was fundamentally unfair.

The defendant does not identify the legal doctrine upon

which this argument is premised. We assume, favorably to the

defendant, that he is mounting an argument under the Due Process

Clause. See U.S. Const. amend. V; see also Kandamar v. Gonzales,

464 F.3d 65, 69 (1st Cir. 2006) (analyzing non-specific unfairness

claim as due process claim). Because this argument was made below

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and turns on a question of law, it engenders de novo review. See

United States v. Chiaradio, 684 F.3d 265, 282 (1st Cir. 2012).

We begin our appraisal by tracing the contours of the

acceptance of responsibility reduction. A defendant's offense

level may be reduced by two levels if the defendant "truthfully

admit[s] the conduct comprising the offense[] of conviction, and

truthfully admit[s] or [does] not falsely deny[] any additional

relevant conduct," USSG §3E1.1, cmt. n.1(A), and by an additional

level if the defendant gives timely notice of his intention to

enter a guilty plea, see id. §3E1.1(b). Here, the defendant does

not contest the district court's finding that the sexual abuse of

Doe constituted additional relevant conduct. See USSG §1B1.3.

Consequently, the defendant could have lost the reduction for

acceptance of responsibility only if the sentencing court

determined that he had "falsely denie[d] or frivolously

contest[ed]" Doe's allegations. USSG §3E1.1, cmt. n.1(A).

Seen in this light, what the defendant mistakenly

envisions as a catch-22 is merely an illusion. The defendant could

have denied the facts upon which Doe's allegations rested without

jeopardizing the reduction for acceptance of responsibility so

long as his denial was truthful. See Coleman, 884 F.3d at 73.

That prophylaxis gave the defendant all the process that was due.

It is, after all, apodictic that the shield of due process does

not protect a defendant from the consequences of falsely denying

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allegations against him. Cf. United States v. Batista-Polanco,

927 F.2d 14, 22 (1st Cir. 1991) ("[N]o criminal defendant enjoys

a constitutional privilege to testify falsely.").

Seeking to move his case to a different plateau, the

defendant points to the district court's comments regarding the

potential consequences of falsely denying or frivolously

contesting Doe's allegations. At sentencing, the following

colloquy took place:

COURT: Let me be clear about what I'm doing
with acceptance. I don't consider his raising
this issue to be a basis to deny acceptance.

DEFENSE COUNSEL: Okay.

COURT: I'm not going to do that.

DEFENSE COUNSEL: All right.

COURT: It seems to me that there's enough
ambiguity to justify what seems to me to be a
legitimate legal issue, and he hasn't taken
the stand. If he were to take the stand and
actively deny any of this, that would be
another matter. But he hasn't done that. So
I will not deny acceptance, if that helps.

DEFENSE COUNSEL: . . . [W]e await your
decision and we offer no further evidence on
this.

These comments, the defendant complains, had a chilling effect

which deterred him from attempting to defend against Doe's

allegations. This plaint comprises more cry than wool: the

district court took great pains to explain that the defendant would

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not lose the acceptance of responsibility reduction as long as he

testified truthfully.

To be sure, the district court's transparency about the

risks of testifying may have caused the defendant to question his

ability to refute Doe's allegations and to that extent may have

discouraged him from testifying. Even so, there was nothing

coercive or unduly minatory about the court's comments; as we

previously have stated, a court can "educate[]" a defendant about

the potential consequences of a particular litigation strategy

without running afoul of the Due Process Clause. United States v.

Stile, 845 F.3d 425, 431 (1st Cir. 2017) (holding that sentencing

court's admonitions to defendant about dangers incident to

decision to testify did not constitute "threat designed to scare

off" defendant from testifying). That is precisely what happened

here: for aught that appears, the defendant's informed choice to

remain silent and forgo the gamble inherent in contesting Doe's

allegations was a strategic decision, not the product of an

unconstitutional bludgeoning by the district court. See id.

If more were needed — and we do not think that it is —

we note that this case is at a considerable remove from the type

of situation where a judicial admonition might effect a violation

of due process. For example, in Webb v. Texas, 409 U.S. 95 (1972)

(per curiam), the Supreme Court held that a trial judge's direct

threat against the sole defense witness in a criminal jury trial

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deprived the defendant of due process. See id. at 98. But there

— as we explained in Stile — the judge "singled out the witness

for a direct admonition to the effect that [he] need not testify,

and if he did and lied, the . . . judge would personally see to it

that he was indicted for perjury, followed by a likely conviction

and sentence." 845 F.3d at 430. Here, by contrast, the district

court did not "effectively dr[i]ve [the defendant] off the stand,"

Webb, 409 U.S. at 98, but simply made clear the self-evident risks

of testifying falsely. Such a warning was appropriate under the

circumstances. Cf. United States v. Vavages, 151 F.3d 1185, 1189

(9th Cir. 1998) ("A defendant's constitutional rights are

implicated only where the . . . judge employs coercive or

intimidating language or tactics that substantially interfere with

a defense witness' decision whether to testify.").

2. One Incident or Two? Next, the defendant argues that

a pattern of activity did not exist because there was only a single

instance of sexual abuse. As framed, this argument (which was

preserved below) presents a question of law. Thus, it engenders

de novo review. See Chiaradio, 684 F.3d at 282.

As said, a "pattern of activity" is "any combination of

two or more separate instances of the sexual abuse or sexual

exploitation of a minor." USSG §2G2.2, cmt. n.1. The court below

found the pattern of activity enhancement applicable because the

defendant "force[d] this 7- or 8-year-old girl in 1997 to engage

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in oral sex" after (on a previous occasion) having "required her

to feel his genitals through his pants." The court noted that

these two incidents were merely the "tip of the iceberg" with

respect to the defendant's pattern of sexually abusing Doe.

Seeking to undermine this finding, the defendant labors

to collapse the two episodes pinpointed by the district court into

a single incident. In his view, the first episode was merely a

failed attempt to consummate what was accomplished during the

second episode. Building on this foundation, he contends that the

later incident (forced oral sex) subsumed the earlier incident

(forced genital touching), which had transpired a few days earlier.

This effort at revisionist history rings hollow.

It cannot be gainsaid that "an attempt . . . to commit

any of the offenses" constituting sexual abuse or exploitation of

a minor is an independent "instance" contributing to a pattern of

"two or more instances" of abuse. USSG §2G2.2, cmt. n.1. Contrary

to the defendant's implication, the mere fact that the same minor

was involved does not suffice to transmogrify two separate

incidents into a single incident. See id. (explaining that "the

same minor" can be involved in the "combination of two or more

separate instances" comprising a pattern of activity). As is

typical of patterns, the two incidents are similar, but they

nonetheless retain their distinct character: they occurred days

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apart and involved discrete sexual acts. Consequently, each

incident had independent significance.

To cinch the matter, the defendant's argument defies

common sense. A defendant cannot hit someone in the ribs on

Monday, hit the same person in the face on Thursday, and then

plausibly claim that he committed only a single assault because he

had been aiming for the face all along. We hold, without serious

question, that the district court did not err in treating the two

episodes as separate instances within the purview of section

2G2.2(b)(5).

3. Weight of the Evidence. Scrabbling to gain a toehold,

the defendant claims that the district court ascribed too much

weight to Doe's uncorroborated allegations of sexual abuse. Our

review of this claim is for clear error. See Nuñez, 852 F.3d at

144. Clear error may be found only when "an inquiring court

'form[s] a strong, unyielding belief that a mistake has been

made.'" Id. (quoting United States v. Cintrón-Echautegui, 604

F.3d 1, 6 (1st Cir. 2010) (alteration in original)). Where, as

here, "raw facts are susceptible to competing inferences, the

sentencing court's choice between those inferences cannot be

clearly erroneous." United States v. McCormick, 773 F.3d 357, 359

(1st Cir. 2014).

It is common ground that "'previous sexual assaults,

although occurring long ago, [can] be considered' when applying a

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section 2G2.2 'pattern of abuse' enhancement." United States v.

Clark, 685 F.3d 72, 79 (1st Cir. 2012) (quoting United States v.

Woodward, 277 F.3d 87, 90-92 (1st Cir. 2002)). The mere fact that

Doe's allegations dated back some twenty years is not, in and of

itself, a disqualifying circumstance. See, e.g., id. (finding

allegations that dated back thirty years or more adequate to

support pattern of activity enhancement); Woodward, 277 F.3d at

91-92 (finding allegations that dated back twenty-two years or

more adequate to support pattern of activity enhancement); United

States v. Amirault, 224 F.3d 9, 12-13 (1st Cir. 2000) (finding

allegations that dated back twenty years or more adequate to

support pattern of activity enhancement).

The defendant says that this case is different because

Doe's allegations lack "tangible or corroborating evidence" and he

was neither charged with nor confessed to the alleged acts.3 He

submits that the lack of corroboration, charges, and inculpatory

statements, coupled with the age of the allegations, left the

district court without a sufficient basis on which to find abuse.

3 To the extent that the defendant asserts that conduct which
did not result in conviction cannot count toward the pattern of
activity enhancement, his assertion is flatly wrong. See USSG
§2G2.2, cmt. n.1 (defining "pattern of activity" as "any
combination of two or more separate instances of the sexual abuse
or sexual exploitation of a minor by the defendant, whether or not
the abuse or exploitation . . . resulted in a conviction for such
conduct"); see, e.g., United States v. Gaffney-Kessell, 772 F.3d
97, 101 (1st Cir. 2014); Woodward, 277 F.3d at 91.

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We are not convinced. The defendant's argument gives insufficient

weight to the "time-tested tenet that 'credibility determinations

are part of the sentencing court's basic armamentarium.'" United

States v. Bernier, 660 F.3d 543, 546 (1st Cir. 2011) (quoting

United States v. Platte, 577 F.3d 387, 392-93 (1st Cir. 2009)).

On appeal, we will not disturb such a determination absent "a

definite and firm conviction that a mistake has been committed."

Id. (quoting United States v. González-Vélez, 587 F.3d 494, 504

(1st Cir. 2009)). A careful review of the record leaves us with

no such conviction.

The district court considered all of the evidence

properly before it and took due account of the totality of the

circumstances. It gave particular weight to the relative

timeliness of Doe's 2001 report, the general consistency of her

allegations across multiple interviews spanning over fourteen

years, and the defendant's "contradictory" statements. The court

expressed no uncertainty about its conclusion that Doe was

credible, and we have no compelling basis on which to second-guess

that credibility determination. See Amirault, 224 F.3d at 13

(observing that "questions of credibility . . . are uniquely within

the competence of the sentencing court").

That ends this aspect of the matter. Factfinding is

peculiarly within the province of the sentencing court and,

affording due deference to the factual findings here, we conclude

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that the court below did not err in applying the pattern of

activity enhancement.

B. Knowing Distribution.

This brings us to the defendant's claim that the district

court erred in finding that he knowingly engaged in the

distribution of child pornography. We review this finding, which

resulted in a two-level enhancement, for clear error. See Nuñez,

852 F.3d at 144.

Some background helps to lend perspective. A sentencing

court may increase a defendant's offense level by two levels "[i]f

the defendant knowingly engaged in [the] distribution" of child

pornography. USSG §2G2.2(b)(3)(F). The defendant does not deny

that he took part in the act of distribution. Consequently, our

inquiry here reduces to whether the defendant's distribution

activities were undertaken knowingly.

The stipulation that distribution be "knowing" was not

part of the original version of the child pornography guidelines

but, rather, was added, effective November 1, 2016, to clarify the

mens rea needed to trigger section 2G2.2(b)(3)(F). See USSG App.

C, Amend. 801 (effective Nov. 1, 2016). This amendment took effect

in the interim between the defendant's guilty plea and his

sentencing. As a general rule, the guidelines in effect on the

date of sentencing control, see United States v. Harotunian, 920

F.2d 1040, 1041-42 (1st Cir. 1995) ("Barring any ex post facto

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problem, a defendant is to be punished according to the guidelines

in effect at the time of sentencing."), and the defendant does not

dispute that Amendment 801 applies retroactively.4

In adopting Amendment 801, the Sentencing Commission

explained that, in general, it was attempting to codify the

approach of the Second, Fourth, and Seventh Circuits, all of which

had held that when a "knowing distribution" enhancement is premised

upon the use of a peer-to-peer file-sharing program, the

enhancement requires only that a defendant know "of the file-

sharing properties of the program." USSG App. C, Amend. 801; see

United States v. Baldwin, 743 F.3d 357, 361 (2d Cir. 2014) (per

curiam); United States v. Robinson, 714 F.3d 466, 469-70 (7th Cir.

2013); United States v. Layton, 564 F.3d 330, 335 (4th Cir. 2009).

Thus, the enhancement may apply even if a defendant lacked an

intent to distribute child pornography, as long as he had knowledge

that by using a peer-to-peer file-sharing program, his child

pornography was made accessible to others. See United States v.

Ryan, 885 F.3d 449, 453-54 (7th Cir. 2018) (applying USSG

§2G2.2(b)(3)(F) as amended), petition for cert. filed, (U.S. May

4
In all events, the Sentencing Commission characterized
Amendment 801 as a clarifying amendment. See USSG App. C, Amend.
801. When amendments are clarifying rather than substantial, they
are deemed to be "purely expository." United States v. Cabrera-
Polo, 376 F.3d 29, 32 (1st Cir. 2004). As such, they apply to
offenses committed before their enactment. See United States v.
Carrasco-Mateo, 389 F.3d 239, 245 (1st Cir. 2004).

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23, 2018) (No. 17-9172); Baldwin, 743 F.3d at 361 (noting that

"intent is irrelevant for an enhancement under §2G2.2(b)(3)(F)"

and that the enhancement is warranted when a defendant has

subjective knowledge "that his use of [peer-to-peer] software

would make child-pornography files accessible to other users"

(emphasis in original)).

The defendant argues that it was clear error for the

district court to apply this enhancement to him because there was

no evidence that he knew of the file-sharing properties of

BitTorrent. This argument confuses a lack of direct evidence with

a lack of evidence: the government need not prove knowledge by

direct evidence, but may prove knowledge by circumstantial

evidence. See Nuñez, 852 F.3d at 146. To become a member of the

BitTorrent network, the defendant installed a computer program and

created a "sharing folder," where files downloaded from the network

were stored. By default, files stored in this folder were

available for download by other BitTorrent users. Although it is

possible that a user might not know about BitTorrent's file-sharing

properties, the defendant was no Luddite. After installing the

program, he used it to download child pornography for roughly three

years before his arrest. Moreover, he was savvy enough in the use

of the technology to establish a methodology by which files

downloaded from BitTorrent would bypass his master hard drive and

be saved automatically to the "sharing folder" housed on a

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subservient drive. This specialized configuration, combined with

the defendant's twenty years of experience as a web designer,

evinced a level of technical competence that allowed the district

court to find that the defendant was "relatively sophisticated in

computer matters."

The defendant's descriptions of BitTorrent in his

interview with the MSPCCU are also relevant. There, he

demonstrated considerable familiarity with BitTorrent's file-

sharing properties, acknowledging that BitTorrent drew "bits and

pieces of files from all over the place," such that each file

stemmed from "a lot of different seeds."5 With regard to the

sharing folder, the defendant noted that he could "stop it and

shut it off" — an apparent acknowledgement of his ability to

control the flow of traffic in and out of the folder. Last — but

surely not least — the defendant had three years of hands-on

experience downloading child pornography through BitTorrent. This

concatenation of circumstances, especially when combined with the

defendant's extensive use of the program, furnished a solid basis

for inferring a likelihood of familiarity with its basic

properties. See Ryan, 885 F.3d at 453-54 (upholding imposition of

knowing distribution enhancement based partly on use of

5For present purposes, it suffices to understand a seed as a
computer in possession of a file to be shared on a peer-to-peer
network.

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"sophisticated software"). The district court supportably drew

such an inference.

The defendant tries to counter this trove of

circumstantial evidence by suggesting that not all peer-to-peer

file-sharing programs inform users that their files are

automatically accessible for others to download. This suggestion

is a red herring: it does not bear upon the defendant's subjective

knowledge of whether his use of BitTorrent made his files available

for distribution to others. Faced with the record before it, the

district court drew a reasonable inference that the defendant knew

of BitTorrent's file-sharing properties. No more was exigible to

sustain a finding of knowledge. See id.; cf. Chiaradio, 684 F.3d

at 281-82 (holding that evidence of technological savvy supported

jury verdict for knowing distribution of child pornography).

Discerning no clear error, we uphold the district court's

imposition of the two-level enhancement for knowing distribution

of child pornography.

III. CONCLUSION

We need go no further. For the reasons elucidated above,

the defendant's sentence is

Affirmed.

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