We first determine whether the district court committed any significant procedural error. We review the district court's factual findings for clear error and its legal conclusions de novo.
We review criminal sentences for reasonableness using an abuse of discretion standard. He argues that the district court erred by applying the five-level enhancement under § 2G2.2(b)(3)(B) instead of the two-level enhancement for simple distribution under § 2G2.2(b)(3)(F). On appeal, McManus contends that his sentence is procedurally unreasonable because the district court improperly calculated his Guideline range under U.S.S.G. 2 The district court applied a downward variance based primarily on the relative seriousness of McManus's offense, resulting in a sentence of 72 months' imprisonment. 1 The district court calculated a sentencing range of 135 to 168 months which it reduced to a range of 120 to 120 months to comply with the statutory maximum. This enhancement 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." Applying this enhancement, the district court concluded that McManus's offense level was 33 and his criminal history category was I. The FBI agent gave McManus nothing in exchange for the files he downloaded and there is no evidence that any other individual downloaded pornographic files from McManus.Īt the sentencing hearing following McManus's guilty plea, the district court applied a five-level enhancement under United States Sentencing Guideline § 2G2.2(b)(3)(B) to McManus's base possession offense level. There is no evidence in the record to indicate how the FBI agent gained access to McManus's restricted shared folder. An FBI agent downloaded some of these files from McManus's Gigatribe account, leading to McManus's arrest and indictment. McManus created a shared folder and populated it with the files of child pornography he possessed. A user is not able to see or access another user's files unless: 1) one user has invited the other and the other has accepted the invitation and 2) the other user maintains a shared folder, accessible to friends, that is populated with files. Gigatribe allows users to share files with other users with whom they have become "friends" through an invitation and acceptance feature of the program. McManus used a file-sharing computer program known as Gigatribe to acquire and maintain images and videos of child pornography. For the reasons that follow, we vacate and remand for resentencing. McManus appeals his sentence on the ground that the district court improperly calculated the applicable Sentencing Guideline range. He was sentenced to 72 months' imprisonment and a subsequent 10 years' supervised release. William Devon McManus pleaded guilty to one count of Possession of Child Pornography in violation of 18 U.S.C.