However, sentencing error is subject to harmlessness review. вЂњAlthough the sentencing guidelines are only advisory, improper calculation of a guideline range constitutes significant procedural error, making the sentence procedurally unreasonable and subject to being vacated.вЂќ United States v. Interpretation of the Sentencing Guidelines is a question of law that we review de novo.If the sentence is procedurally sound, we review its substantive reasonableness to determine whether in the totality of the circumstances the district court abused its discretion by concluding that the sentence satisfies the standards set out in 18 U.S.C. 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 В§ 2G2.2(b)(3)(B) instead of the two-level enhancement for simple distribution under В§ 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.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. 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 вЂњdistributedвЂќ child pornography вЂњfor the receipt, or expectation of receipt, of a thing of value, but not for pecuniary gain.вЂќ Applying this enhancement, the district court concluded that McManus's offense level was 33 and his criminal history category was I. At the sentencing hearing following McManus's guilty plea, the district court applied a five-level enhancement under United States Sentencing Guideline В§ 2G2.2(b)(3)(B) to McManus's base possession offense level.

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 вЂњfriendsвЂќ 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.A knowledgeable file-share user вЂњha no expectation of receiving any more child pornography merely by sharing his filesвЂќ because he understands that he does not need to make his files available to gain access to those of other users. As Geiner recognized, knowing use of a sharing feature proves only an intent to distribute because a user does вЂњnot need to share child pornography to get pornography.вЂќ Vadnais, 667 F.3d at 1210. Vadnais held that inferring an expectation of receipt from mere use is unsupported by the operation of an open file-sharing program because вЂњfreeloadingвЂќ is possible. Vadnais, the Eleventh Circuit held that вЂњlogic compels the conclusion that more must be required for the five-level enhancement,вЂќ because it вЂњrequire that the distribution occur for a specified purpose.вЂќ 667 F.3d 1206, 1209 (11th Cir.2012). Spriggs, the Eleventh Circuit held that a user's mere вЂњhope that a peer would reciprocate his generosityвЂќ was insufficient to show distribution with an expectation of receipt вЂњithout evidence that and another user conditioned their decisions to share their illicit image collections on a return promise to share files.вЂќ 666 F.3d 1284, 1288 (11th Cir.2012).

Gigatribe fbi