United States v. Ronald Mabee, 765 F.3d 666

Ronald Mabee used the ARES peer-to-peer program and agents downloaded child pornography from an IP assigned to him; forensic exam recovered ~73 images and 14 videos, some in a folder named “My Shared Folder.”
Mabee pleaded guilty to distribution of child pornography; plea agreement reserved guideline disputes and sentencing arguments.
PSR recommended a five-level U.S.S.G. § 2G2.2(b)(3)(B) enhancement for distribution for the receipt or expectation of a thing of value (trading enhancement); PSR concluded sharing enabled receipt of others’ files.
Mabee’s sentencing memorandum and in-court statements emphasized he did not engage in individual trades, did not communicate with others, and maintained that he merely viewed images for personal use; he also acknowledged files were in a shared folder and available to others.
At sentencing the court adjusted some guideline points downward, counsel and the government agreed with the court’s arithmetic, Mabee said the PSR was accurate, and the court imposed a 121-month sentence (bottom of the revised range).
On appeal Mabee argued the trading enhancement was unjustified; government argued forfeiture or waiver because Mabee did not object and agreed with parts of the court’s calculation.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Mabee waived the right to challenge the § 2G2.2(b)(3)(B) enhancement	Mabee contends he did not explicitly agree the enhancement applied and therefore did not waive the claim	Government argues Mabee waived by agreeing in court with the judge’s guideline calculations and saying the PSR was accurate	Court: No waiver. Mabee forfeited (failed to timely object) so review is plain-error, but he did not knowingly relinquish the right to challenge the enhancement.
Whether the § 2G2.2(b)(3)(B) trading enhancement was plainly erroneous	Mabee argues mere use of a file-sharing program and possession of files without evidence of quid pro quo trading does not support enhancement	Government argues circumstantial evidence (shared-folder, use of P2P, his acknowledgment that files had to be made available to receive others’) supports enhancement	Court: Not plain error. Circumstantial evidence, including Mabee’s admission that making files available was necessary to receive files, sufficed to uphold the five-level enhancement.

Olano v. United States, 507 U.S. 725 (waiver distinct from forfeiture; intentional relinquishment required for waiver)
United States v. Babcock, 753 F.3d 587 (failure to object at sentencing forfeits claim; plain-error review)
United States v. Binney, [citation="562 F. App'x 376"] (P2P sharing plus circumstantial evidence can support § 2G2.2(b)(3)(B) enhancement)
United States v. McManus, 734 F.3d 315 (sharing alone does not automatically trigger trading enhancement)
United States v. Vadnais, 667 F.3d 1206 (file-sharing use insufficient by itself for trading enhancement; need evidence of expectation of receipt)
United States v. Simmons, 587 F.3d 348 (failure to raise sentencing objection at hearing results in forfeiture, not waiver)