Case: 14-11997   Date Filed: 09/02/2015   Page: 1 of 3


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 14-11997
                        Non-Argument Calendar
                      ________________________

                 D.C. Docket No. 1:13-cr-20660-CMA-1



UNITED STATES OF AMERICA,

                                             Plaintiff - Appellee,

versus

DANIEL DIAZ,

                                             Defendant - Appellant.



                      ________________________

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

                            (September 2, 2015)

Before MARTIN, ANDERSON and BLACK, Circuit Judges.

PER CURIAM:
                Case: 14-11997        Date Filed: 09/02/2015       Page: 2 of 3


       Daniel Diaz appeals his 115-month sentence of imprisonment, imposed after

pleading guilty to one count of receipt of child pornography, in violation of 18

U.S.C. § 2252(a)(2), and one count of possession of child pornography of

prepubescent minors, in violation of 18 U.S.C. § 2252(a)(4)(B). On appeal Diaz

argues the district court erred in (1) imposing a two-level enhancement under

U.S.S.G. § 2G2.2(b)(3)(F) for distribution of child pornography, and (2) declining

to grant a two-level reduction under U.S.S.G. § 2G2.2(b)(1) for an offense

involving mere receipt or solicitation of child pornography. As the parties are

familiar with the facts of the case, we weave them into the discussion only as

necessary. Upon review, we affirm. 1

       The district court did not err by enhancing Diaz’s sentence under

§ 2G2.2(b)(3)(F) for distribution of child pornography. Diaz’s argument that he

did not knowingly make child pornography accessible to others lacks merit. See

United States v. Creel, 

, 1358 (11th Cir. 2015) (holding “distribution

of child pornography does not require an offender to know that he made child

pornography accessible to others” (citation omitted)). Diaz admitted to (1) posting

an image of child pornography on his Twitter account; (2) having child

pornography in his shared folder on the e-Donkey peer-to-peer file-sharing


       1
         We review the district court’s application and legal interpretations of the Guidelines de
novo, and the district court’s factual determinations for clear error. United States v. Zaldivar,

, 1350 (11th Cir. 2010).
                                                2
                 Case: 14-11997       Date Filed: 09/02/2015        Page: 3 of 3


program; and (3) trading images through the Kik Messenger application. Even if

knowledge were an element of distribution, these facts establish Diaz knowingly

distributed child pornography. 2 See 

       The district court did not err when it declined to apply a reduction under

§ 2G2.2(b)(1) for mere receipt and solicitation of child pornography. The

undisputed facts show Diaz did more than simply receive or solicit child

pornography. Diaz entered chat rooms to trade images, used file-sharing networks

to make his files accessible to others, and amassed an enormous number of images

and videos which he meticulously categorized for easy access, including one folder

titled “Need more of.” See United States v. Cubero, 

, 895 (11th Cir.

2014) (holding use of peer-to-peer file-sharing network to receive and make child

pornography available to others precluded a reduction under § 2G2.2(b)(1)).

       In light of the foregoing reasons, we affirm.

       AFFIRMED.




       2
            To the extent Diaz argues in his reply brief that the Government failed to prove Diaz’s
Twitter account was set for public access, this argument fails. We do not consider arguments for
the first time in a reply brief. See United States v. Britt, 

, 1104 (11th Cir. 2006).
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