Case: 13-10499    Date Filed: 09/25/2013   Page: 1 of 4


                                                            [DO NOT PUBLISH]



               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 13-10499
                            Non-Argument Calendar
                          ________________________

                     D.C. Docket No. 4:12-cr-10007-KMM-1


UNITED STATES OF AMERICA,

                                                                  Plaintiff-Appellee,

                                      versus


MICHAEL MARAN,

                                                             Defendant-Appellant.
                          ________________________

                   Appeal from the United States District Court
                       for the Southern District of Florida
                         ________________________

                               (September 25, 2013)

Before CARNES, Chief Judge, MARTIN and FAY, Circuit Judges.

PER CURIAM:

      Jason Maran appeals his 293-month sentence for distribution and possession

of child pornography, in violation of 18 U.S.C. §§ 2252(a)(2) and 2252(a)(4)(B).
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Maran contends that the district court erred by applying a five-level sentencing

enhancement under § 2G2.2(b)(3) of the United States Sentencing Guidelines for

distributing child pornography for the receipt, or expectation of receipt, of a thing

of value. Specifically, he asserts that there was no evidence that he did more than

gratuitously share images of child pornography with no expectation of receiving

anything in return.

      We review a district court’s factual findings for clear error and its

application of those facts to justify a sentencing enhancement de novo. United

States v. Spriggs, 

, 1286 (11th Cir. 2012). Section 2G2.2(b)(3)(B)

provides for a five-level sentencing enhancement where a defendant engages in the

distribution of child pornography “for the receipt, or expectation of receipt, of a

thing of value, but not for pecuniary gain.” U.S.S.G. § 2G2.2(b)(3)(B). The

provision applies to any type of “bartering or other in-kind transaction” for

valuable consideration, such as the exchange of child pornography. 

n.1. Thus, “when a defendant trades child

pornography in exchange for other child pornography, the defendant has engaged

in distribution for the receipt, or expectation of receipt, of a thing of value.”

United States v. Bender, 

, 1286 (11th Cir. 2002) (quotation marks

omitted).




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      But simply making child pornography available to other individuals, without

anticipating anything in return, is not sufficient to warrant application of the

enhancement. In United States v. Vadnais, 

, 1209 (11th Cir. 2012),

which Maran heavily relies on, we held that the mere use of a peer-to-peer file-

sharing network to download child pornography, which by default allows other

users to access those same images, does not support the application of a §

2G2.2(b)(3)(B) enhancement absent “some other evidence, whether direct or

circumstantial, that [the] defendant reasonably believed that he would receive

something of value by making his child pornography files available for distribution

. . . .” Such evidence, we elaborated, “must show the connection between the

defendant’s distribution and the receipt or expectation of receipt of a thing of

value.” 

the government must present some evidence that the

defendant “shared his child pornography to gain access to another [person’s]

pornography” or conditioned his decision to make such images available “on a

return promise to share files.” 

.

      There was such evidence in this case and, for that reason, the district court

did not err in applying the five-level sentencing enhancement mandated by

§ 2G2.2(b)(3)(B). Unlike the circumstances in Vadnais, Maran engaged in a one-

on-one email exchange of child pornography with another person and admitted on

numerous occasions that he “traded” child pornography online. Maran


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acknowledged at his plea hearing that, in response to an email request to trade

child pornography, he directed his correspondent to “send him [an] index sheet” of

illicit images in exchange for another set of images, which he later sent to the

correspondent after receiving several images of child pornography. Maran also

admitted to law enforcement agents, a probation officer, and in his written

acceptance-of-responsibility statement that he amassed his collection of child

pornography by trading images and videos with other people via email. Maran’s

conduct, his admissions, and his consistent use of the word “trade” to describe his

interactions with other child pornography collectors were sufficient to support a

determination that he distributed child pornography with the reasonable

expectation or belief of receiving child pornography in return, not simply that he

gratuitously shared those illicit images with others. Accordingly, we affirm

Maran’s sentence.

      AFFIRMED.




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