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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 12-12854
Non-Argument Calendar
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D.C. Docket No. 6:11-cr-00216-RBD-KRS-1
UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllllllllllll Plaintiff-Appellee,
versus
STEVEN WARING,
llllllllllllllllllllllllllllllllllllllll Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Florida
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(February 4, 2013)
Before TJOFLAT, PRYOR and BLACK, Circuit Judges.
PER CURIAM:
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Steven Waring appeals his 150-month sentence for 1 count of possession of
child pornography, in violation of 18 U.S.C. § 2552A(a)(2)(A) and (b)(1), and
1 count of distribution of child pornography, in violation of 18 U.S.C.
§ 2252A(a)(5)(B) and (b)(2). Waring argues the district court plainly erred by
applying a five-level sentencing enhancement for distribution of child
pornography for the receipt, or expectation of receipt, of a thing of value.
When a defendant does not raise a particular argument below, we review
only for plain error. United States v. Moreno, 421 F.3d 1217, 1220 (11th Cir.
2005). To establish plain error, the defendant must show (1) an error, (2) that is
plain, (3) that affects substantial rights, and (4) that seriously affects the fairness,
integrity, or public reputation of judicial proceedings. Id. For an error to be
considered “plain” for purposes of plain-error review, “it is enough that the error
was plainly established under the law at the time of appellate review.” United
States v. Pantle, 637 F.3d 1172, 1175 (11th Cir. 2011).
For an error to affect substantial rights, “in most cases it means that the error
must have been prejudicial: It must have affected the outcome of the district court
proceedings.” United States v. Olano, 113 S. Ct. 1770, 1778 (1993). “Where
errors could have cut either way and uncertainty exists, the burden is the decisive
factor in the third prong of the plain error test, and the burden is on the defendant.”
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United States v. Rodriguez, 398 F.3d 1291, 1300 (11th Cir. 2005). “The important
function of the third prong of the plain error test is to prevent a remand for
additional proceedings where the defendant, who failed to make a timely
objection, cannot show that there is a reasonable probability that a do-over would
more likely than not produce a different result.” Id. at 1302.
Section 2G2.2(b)(3)(B) of the Sentencing Guidelines authorizes a five-level
enhancement when the defendant engaged in the distribution of child pornography
“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). In early January 2012, following the
preparation of the PSI in this case, we issued two decisions explaining the proper
application of this enhancement. In United States v. Spriggs, 666 F.3d 1284,
1286–87 (11th Cir. 2012), the defendant downloaded child pornography using
Shareaza 2.0, a peer-to-peer file-sharing program, which had a default setting that
allowed others to download files from the defendant’s computer. We held the
enhancement was misapplied because there was no evidence the defendant and
“another user conditioned their decisions to share their illicit image collections on
a return promise to share files,” and noted that a mere “hope of receiving more
pornography” is insufficient to justify the enhancement. Id. at 1288. In United
States v. Vadnais, 667 F.3d 1206, 1207 (11th Cir. 2012), the defendant used
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LimeWire, a peer-to-peer file-sharing program, which also had a default setting
that automatically placed downloaded files into a shared files folder. We held the
enhancement was inapplicable because the defendant merely installed and used
LimeWire to download child pornography in a manner that permitted other users
to obtain his shared child pornography files. Id. at 1209. We stated “more must
be required for the five-level enhancement;” there must be direct or circumstantial
evidence that the defendant “reasonably believed” he would receive something of
value by making his child pornography files available for others to download. Id.
Based on Spriggs and Vadnais, Waring can satisfy the first two prongs of
the plain error test. The record is devoid of facts that would justify application of
the § 2G2.2(b)(3)(B) enhancement, as there was no evidence Waring reasonably
believed he would receive something of value in exchange for making his child
pornography videos available for distribution through a peer-to-peer network.
Vadnais, 667 F.3d at 1209. Moreover, the error was plainly established at the time
of appellate review. Pantle, 637 F.3d at 1175. Waring cannot, however, meet his
burden of persuasion with regard to the third prong of the plain-error test.
Rodriguez, 398 F.3d at 1300. If Waring were to be resentenced, his guideline
range would be 151 to 188 months, instead of 210 to 262 months. He received a
sentence of 150 months, and there is no evidence suggesting the district court
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would have gone lower, especially in light of the court stressing the need for
deterrence, the alarming scope of the offense, and the impact of Waring’s crimes
on the child victims. Further, Waring received a 15-year supervised release term,
which is 3 times the statutory minimum. Accordingly, Waring “cannot show that
there is a reasonable probability that a do-over would more likely than not produce
a different result.” Id. at 1302.
AFFIRMED.
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