Appeal from the United States District Court for the Southern District of Florida D.C. Docket No. 2:10-cr-14013-JEM-1
The opinion of the court was delivered by: Wilson, Circuit Judge:
U.S. COURT OF APPEALS ELEVENTH CIRCUIT
Before WILSON and COX, Circuit Judges, and RESTANI,*fn1
Appellant Timothy Spriggs pled guilty to one count of receipt of child pornographyin violation of 18 U.S.C. § 2252(a)(2). At sentencing, over Spriggs's objection, the district court applied a five-level enhancement for distribution of illicit images for the receipt, or expectation of receipt, of a non-pecuniary thing of value. See U.S. SENTENCING GUIDELINES MANUAL § 2G2.2(b)(3)(B) (2010). Spriggs argues that no evidence supports application of the enhancement. We vacate the sentence and remand because, although we find evidence that Spriggs distributed illicit images, there is insufficient evidence to support the other elements of the five-level enhancement.
The district court's factual findings are reviewed for clear error, and its application of those facts to justify a sentencing enhancement is reviewed de novo. United States v. Walker, 490 F.3d 1282, 1299 (11th Cir. 2007).
Spriggs downloaded child pornography through use of a peer-to-peer file-sharing program named Shareaza 2.0. The copy of Shareaza 2.0 on Spriggs's computer was configured to allow peers to download files from his computer. Law enforcement was unsuccessful when it attempted to download Spriggs's files, and at sentencing no direct evidence was presented that other users downloaded files from Spriggs's child-pornography collection.
Detective Brian Broughton testified at Spriggs's sentencing hearing. He explained that the default settings on Shareaza 2.0 automatically provided for reciprocal sharing and required additional steps if a user did not want to share files with others using the program. Most of Spriggs's child-pornography collection was located in a shared folder that could be accessed by other Shareaza users. The detective also described the possible benefits of sharing files:
In many of the software suites that are out there, if you are sharing, sometimes that elevates you to a higher status as it relates if you're looking for a file that belongs to somebody and you happen to be sharing a large amount of files, you'll move up higher in the queue and be able to download somebody quicker than somebody who is, let's say not sharing as many files or maybe has file sharing turned off.
Still, Detective Broughton never testified that Shareaza 2.0, in particular, provided users a benefit, such as faster downloading capabilities, when they enabled file sharing.
The district court applied the five-level enhancement, reasoning that Spriggs distributed child pornography with the expectation that he would receive either more child ...