United States v. Barela
2015 U.S. App. LEXIS 14501
| 10th Cir. | 2015Background
- In 2007 Barela’s computer was seized after a peer-to-peer (LimeWire) sting; hundreds of images and dozens of videos of child pornography were found. He pled guilty to one count of distribution and one count of possession of child pornography.
- The PSR recommended a five-level enhancement under U.S.S.G. § 2G2.2(b)(3)(B) (distribution "for the receipt, or expectation of receipt, of a thing of value") based on his use of a peer-to-peer network, producing a controlling 210-month sentence.
- At sentencing the government presented no testimony; the district court adopted the PSR’s rationale that sharing via a file-sharing network implies expectation of receiving a thing of value and applied the five-level enhancement.
- Barela objected, arguing the government had not proved he distributed in expectation of any return and that a two-level enhancement under § 2G2.2(b)(3)(F) was appropriate. He also challenged various special supervised-release sex-offender conditions (including a ban on possessing materials depicting or describing "sexually explicit conduct").
- The Tenth Circuit held that United States v. Geiner controlled: mere participation in a peer-to-peer network is not per se proof of an expectation of receiving a thing of value; the five-level enhancement requires evidence beyond simple file sharing. The court vacated and remanded for resentencing.
- The court reviewed the supervised-release conditions for plain error, concluded the district court erred by failing to state reasons for imposing them but that the record nonetheless supported the conditions, and rejected Barela’s plain-error First Amendment challenge to the pornography/materials ban.
Issues
| Issue | Barela’s Argument | Government’s Argument | Held |
|---|---|---|---|
| Whether § 2G2.2(b)(3)(B) five-level enhancement applies based solely on peer-to-peer participation | Geiner controls: mere use of file‑sharing is insufficient; no proof Barela expected a return, so enhancement improper | Geiner’s language was dicta; enhancement can follow from mere participation or at least facts here supported it | Followed Geiner: mere participation alone is not enough; district court erred; vacate and remand for resentencing |
| Whether § 2G2.2(b)(3)(F) two-level enhancement should apply instead | Barela concedes his use constituted distribution and that two-level enhancement is proper absent proof of expectation | Govt. did not rebut that bare participation is enough; argued additional facts could justify five-level | Court did not decide merits beyond vacating five-level; remanded for resentencing (two-level may govern absent proof of expectation) |
| Whether district court erred by imposing special sex‑offender supervised‑release conditions without stated reasons | Barela: court failed to provide reasons; conditions should be vacated | Govt.: error is subject to plain-error review and the record supports the conditions so no relief | Court: procedural error (no reasons) but record supports conditions; plain error not established—conditions affirmed |
| Whether prohibition on possessing/viewing materials depicting or describing "sexually explicit conduct" violated § 3553(a), was overbroad, or violated First Amendment | Barela: condition unrelated to sentencing factors, greater-than-necessary liberty deprivation, infringes First Amendment | Govt.: plain-error standard; circuit split; given facts (child‑porn convictions, history) any error is not clear or obvious | Court: plain error not shown given precedent and defendant’s circumstances; condition stands |
Key Cases Cited
- United States v. Geiner, 498 F.3d 1104 (10th Cir. 2007) (peer‑to‑peer sharing alone does not automatically establish expectation of receiving a thing of value; whether expectation exists is fact‑specific)
- United States v. Ray, 704 F.3d 1307 (10th Cir. 2013) (use of peer‑to‑peer network can constitute "distribution" under § 2G2.2)
- United States v. Kristl, 437 F.3d 1050 (10th Cir. 2006) (standard of review for sentencing findings: factual findings for clear error, legal questions de novo)
- United States v. Maneri, 353 F.3d 165 (2d Cir. 2003) (interpreting "expectation" language for enhancement)
- United States v. Griffin, 482 F.3d 1008 (8th Cir. 2007) (held enhancement applied to peer‑to‑peer users in that case; criticized by Geiner)
- United States v. Mike, 632 F.3d 686 (10th Cir. 2011) (plain‑error review of supervised‑release pornography/materials bans; circuit split makes error not "clear or obvious")