USA v. Charles Smith

Filing

OPINION filed : The judgment is AFFIRMED, decision not for publication. Eugene E. Siler , Jr., Jeffrey S. Sutton, and David W. McKeague (AUTHORING), Circuit Judges.

Case: 14-1380

Document: 15-2

Filed: 11/25/2014

Page: 1

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 14a0886n.06

FILED

Case No. 14-1380
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
CHARLES PAUL SMITH,
Defendant-Appellant.

)
)
)
)
)
)
)
)
)
)

Nov 25, 2014
DEBORAH S. HUNT, Clerk

ON APPEAL FROM THE
UNITED STATES DISTRICT
COURT FOR THE WESTERN
DISTRICT OF MICHIGAN
OPINION

BEFORE: SILER, SUTTON and McKEAGUE, Circuit Judges.
McKEAGUE, Circuit Judge. Defendant Charles Paul Smith pled guilty to one count of
receiving child pornography, in violation of 18 U.S.C. § 2252(a)(2)(A), and was sentenced to a
prison term of 120 months. Even though the sentence represents a 90-month downward variance
from the low end of the applicable Guidelines range, defendant contends the Guidelines range
calculated by the district court was inflated by an erroneous enhancement, rendering the sentence
procedurally unreasonable. Had the enhancement not been applied, the applicable Guidelines
range would have been 151 to 188 months, instead of 210 to 240 months. Reviewing the
judgment for abuse of discretion, we find no error.
The presentence report prepared by the Probation Department recommended calculating
Smith’s total offense level to be 37 and his criminal history category to be I, yielding an advisory
Guidelines range of 210 to 240 months. This total offense level included a five-level increase

Case: 14-1380

Document: 15-2

Filed: 11/25/2014

Page: 2

Case No. 14-1380
United States v. Charles Smith
under U.S.S.G. § 2G2.2(b)(3)(B) because “the offense involved . . . [d]istribution for the receipt,
or expectation of receipt, of a thing of value, but not for pecuniary gain.” Smith objected to the
enhancement. He acknowledged that his admitted offense conduct involved use of a file-sharing
program that constituted “distribution,” justifying a two-level increase under U.S.S.G.
§ 2G2.2(b)(3)(F). He argued, however, that his use of a file-sharing program, without more, is
insufficient to show “receipt, or expectation of receipt, of a thing of value.” The district court
overruled the objection. The court agreed with Smith that his use of a peer-to-peer file-sharing
program did not, in itself, justify automatic application of the enhancement. However, with
reference to ¶¶ 32 and 34 of the presentence report—describing Smith’s admitted long-term use
of the file-sharing program to access child pornography for sexual arousal—the court found that
Smith shared his files in the expectation of receiving something of value to him, i.e., other child
pornography files.
We review Smith’s procedural-unreasonableness challenge for abuse of discretion. Gall
v. United States, 552 U.S. 38, 46 (2007). A sentencing court will be found to have abused its
discretion and imposed a procedurally unreasonable sentence if it miscalculated the applicable
Guidelines range, failed to consider the § 3553(a) factors, or based the sentence on clearly
erroneous facts. United States v. Adkins, 729 F.3d 559, 563 (6th Cir. 2013). Sentencing facts are
to be found by a preponderance of the evidence. United States v. Ross, 703 F.3d 856, 884 (6th
Cir. 2012).
Smith contends the district court miscalculated the Guidelines range based on the
erroneous finding that he distributed child pornography in expectation of receiving other child
pornography. He argues the evidence of his expectation of receiving other child pornography is
non-existent and that the enhancement was applied solely because he used a file-sharing

-2-

Case: 14-1380

Document: 15-2

Filed: 11/25/2014

Page: 3

Case No. 14-1380
United States v. Charles Smith
program. This kind of per se application of the enhancement, Smith argues, is contrary to Sixth
Circuit law.
In support, he cites United States v. Emmons, 524 F. App’x 995 (6th Cir. 2013), where,
however, the § 2G2.2(b)(3)(B) enhancement was upheld. We observed that “[t]he enhancement
does not apply merely because a defendant used a file-sharing program, but extensive use of the
program resulting in the possession of several hundred images will weigh in favor of the
enhancement.” Id. at 999 (citing United States v. Hardin, 437 F. App’x 469, 474 (6th Cir.
2011)).

In Hardin, as Smith notes, we agreed with the Tenth Circuit that “the five-level

enhancement does not automatically apply simply because Appellant used a file-sharing
program.” Hardin, 437 F. App’x at 474 (citing United States v. Geiner, 498 F.3d 1104, 1111
(10th Cir. 2007)). Yet, observing that the enhancement must be “decided on a case-by-case
basis,” we upheld the enhancement in Hardin, too, holding that the defendant’s “sophisticated
and extensive use” of the program was sufficient to sustain the “expectation” finding. Id.
Entirely consistent with these rulings is our more recent decision in United States v.
Mabee, 765 F.3d 666 (6th Cir. 2014). In determining the appropriateness of the five-level
enhancement, we held the court must “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.”
Id. at 674 (quoting United States v. Binney, 562 F. App’x 376, 379 (6th Cir. 2014) (internal
alterations and quotation marks omitted)). In Mabee, too, we upheld the enhancement, finding
no clear error in the sentencing court’s reliance on a circumstantial record not unlike the facts
here relied on by the district court. See also United States v. Miezin, --- F. App’x --- , 2014 WL
5288131 (6th Cir. Oct. 15, 2014) (same).

-3-

Case: 14-1380

Document: 15-2

Filed: 11/25/2014

Page: 4

Case No. 14-1380
United States v. Charles Smith
Smith’s sentencing is in line with the above Sixth Circuit authorities. The district court
did not improperly apply the enhancement automatically just because Smith used a file-sharing
program. Rather, the court considered circumstantial evidence of Smith’s extensive and longterm use of the file-sharing program.

The determination that the factual premise for the

enhancement was established by a preponderance of the evidence is not clearly erroneous. We
find no abuse of discretion. Quite to the contrary, we note that the court ameliorated the harsh
impact of the enhancement by granting a substantial downward variance, to which the
government has not objected.
The judgment is AFFIRMED.

-4-