Defendant Must Be Resentenced After Improper Sentencing Enhancement – U.S. v. McManus
Though the U.S. Sentencing Guidelines are now advisory rather than absolute, they’re still an important guide to federal district courts as they sentence people convicted of crimes. And if the sentencing range calculated under those Guidelines is calculated incorrectly, it’s an error that is not harmless. The Fourth U.S. Circuit Court of Appeals recently concluded that in U.S. v. McManus, a case in which the court had already departed downward from the defendant’s Guidelines range. William McManus of North Carolina pleaded guilty to possession of child pornography, with a sentence enhancement for distributing the pornography for receipt or expectation of something of value. Because he didn’t do this, the Fourth said, his sentence should be recalculated.
McManus was caught in possession of child pornography by an FBI agent who downloaded the material via a file-sharing program called GigaTribe. The agent gave McManus nothing in exchange for the material, and no evidence shows that McManus shared the material with anyone else. Nonetheless, at the sentencing hearing, the district court applied a five-level sentence enhancement to McManus’s base offense level. The enhancement was for distributing child pornography for the receipt, or expectation of receipt, of a thing of value” other than money. No evidence shows that McManus expected or received anything of value from sharing the files, however. With the enhancement, McManus had a sentencing range of 135 to 168 months; however, the statutory maximum was only 120 months. The district court departed further downward to 72 months, based largely on the lack of seriousness of the offense.
McManus nonetheless appealed, arguing that he should have received a two-level simple distribution enhancement rather than the five-level enhancement. What qualifies as distributing with expectation of a thing of value is a matter of first impression in the Fourth Circuit, the court noted. But the text is plain: the prosecution must show that the defendant distributed the material for a thing of value, or expecting a thing of value, other than money. The Fourth found no such evidence. It rejected the government’s argument that McManus had to have expected gain because GigaTribe sharing is reciprocal; giving the FBI agent access to his shared folder would have given him access to the agent’s. This improperly creates a per se rule, the court noted. Though McManus ended up with a sentence below the range created by removing the improper enhancement, the Fourth said, it’s not clear that the district court wouldn’t have decided differently, so it sent the case back for resentencing.
I’m pleased to see that this defendant will get a chance at another sentence, which I hope will more closely reflect his actual conduct. Though sentencing errors can be “harmless,” the Fourth Circuit decided that this was not harmless because it didn’t want to second-guess the district judge. That judge’s decision to depart downward from the high mandatory minimum is itself welcome news. The U.S. Sentencing Commission has criticized sentences for child pornography crimes as inflated by sentence enhancements like these; as a result, a majority of district courts depart downward when they sentence defendants. Unfortunately, it’s not clear that Congress will ever have the courage to make the recommended changes.
If you’re accused of a serious crime involving the Internet or technology, you should call Seltzer Law, P.A., as soon as possible. Lead attorney David Seltzer is an experienced cyber crime defense lawyer and former cyber crime prosecutor; he understands the technical and legal issues tangled in these cases. For a free consultation, call us anytime at 1-888-THE-DEFENSE (1-888-843-3333) or send us a message online.
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