United States v. McManus, No. 12-4901

Decided: October 30, 2013

The Fourth Circuit found that the district court improperly calculated William McManus’s (“McManus”) applicable Sentencing Guideline range and therefore vacated the sentence and remanded for resentencing.

Gigatribe is a file-sharing computer program. By way of an invitation and acceptance feature, Gigatribe allows users to share files with other users with whom they are “friends.” Despite being “friends” with a particular user, however, a user cannot access that particular user’s files unless the other user maintains a shared folder, accessible to friends that are populated with files. McManus used Gigatribe’s file-sharing feature to acquire and maintain child pornography. After an FBI agent downloaded several files containing child pornography from McManus’s Gigabtribe account, McManus was arrested and indicted. He subsequently pleaded guilty. The record indicated that the agent gave McManus nothing in exchange for the files he downloaded and there was no evidence that any other Gigatribe user downloaded pornographic files from McManus. Following McManus’s guilty plea, at his sentencing hearing, the district court applied a five-level enhancement to McManus’s base offense level by way of United States Sentencing Guideline § 2G2.2(b)(3)(B). Because Section 2G2.2(b)(3)(B) only applies when a defendant has “distributed” child pornography “for the receipt, or expectation of receipt, of a thing of value, but not for pecuniary gain,” McManus filed this appeal arguing that the district court erred by applying the five-level enhancement instead of the two level enhancement for simple distribution under Section 2G2.2(b)(3)(f), and therefore, his sentence was procedurally unreasonable.

On appeal, the Fourth Circuit first addressed the meaning of Section 2G2.2(b)(3)(B) and held that the meaning of the phrase at issue was unambiguous. The clear meaning of the text, according to the court, requires that for the enhancement to trigger, the government must prove that the defendant distributed pornography with the specific purpose of securing some kind of benefit in exchange. In other words, the government must show that the defendant conditioned his decision to distribute his files on his belief that he would receive something of value in return.

Next, the court applied its interpretation to the facts of the case and rejected the government’s proposed inherent reciprocity argument. In so doing, the court concluded that it is clearly possible, based on the features of the Gigatribe system, that a user could distribute his files without any reasonable expectation of receiving anything of value in exchange.  The court further found that the government did not submit sufficient individualized evidence of McManus’s intent to distribute his pornographic material in expectation of receipt of a thing of value. Therefore, because the district court’s improper sentencing range calculation constituted a significant procedural error that was not harmless to McManus, the Fourth Circuit vacated the district court’s sentence and remanded for sentencing.

Full Opinion

– W. Ryan Nichols

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