United States v. Geiner

498 F.3d 1104, 2007 U.S. App. LEXIS 19769, 2007 WL 2358678
CourtCourt of Appeals for the Tenth Circuit
DecidedAugust 20, 2007
Docket06-8055
StatusPublished
Cited by77 cases

This text of 498 F.3d 1104 (United States v. Geiner) is published on Counsel Stack Legal Research, covering Court of Appeals for the Tenth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Geiner, 498 F.3d 1104, 2007 U.S. App. LEXIS 19769, 2007 WL 2358678 (10th Cir. 2007).

Opinion

TACHA, Chief Circuit Judge.

Defendant-Appellant Robert Geiner appeals his sentence of 210 months’ imprisonment for attempted interstate transportation of child pornography and possession of child pornography. We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a)(1) and affirm.

*1106 I. BACKGROUND

Mr. Geiner was charged with attempted interstate transportation of child pornography (count one), in violation of 18 U.S.C. § 2252A(a)(2)(A) & (b)(1), and possession of child pornography (count two), in violation of 18 U.S.C. § 2252A(a)(5)(B) & (b)(2). He pleaded guilty to both counts, but did so without entering into a plea agreement. Because the proposed plea agreement required that Mr. Geiner stipulate to the application of certain enhancements under the United States Sentencing Guidelines (U.S.S.G. or Guidelines), Mr. Geiner rejected the agreement, electing to raise his arguments regarding the proper application of the Guidelines before the District Court. At his change of plea hearing, Mr. Geiner admitted that he knowingly possessed and attempted to distribute computer files containing child pornography by enabling the file-sharing feature on a computer software program called “bears-hare,” which he installed on his home computer. He also admitted that he obtained computer files containing child pornography by downloading them from other people using bearshare.

The U.S. Probation Office issued a Pre-sentence Investigation Report (PSR) calculating an imprisonment range under the Guidelines of 210 to 262 months for count one and 210 to 240 months for count 2 based on a total offense level of 37 and a Criminal History Category of I. The total offense level included a five-level enhancement under U.S.S.G. § 2G2.2(b)(3)(B) for committing an offense involving “distribution for the receipt, or expectation of receipt, of a thing of value, but not for pecuniary gain.” As the PSR addendum reflects, Mr. Geiner objected to the application of this enhancement, arguing that it should not apply because he did not barter or agree with another for the exchange of a “thing of value” when he shared and downloaded files containing child pornography.

Mr. Geiner noted this same objection to the PSR at his sentencing hearing, arguing that, instead of applying the five-level enhancement, the court should apply the general two-level enhancement under U.S.S.G. § 2G2.2(b)(3)(F) for distribution that does not fall under one of the other § 2G2.2(b)(3) subsections. In response, the Government introduced the testimony of the special agent who investigated and interviewed Mr. Geiner. 1 The agent testified that Mr. Geiner had been using a software program called bearshare, a peer-to-peer file-sharing program that is available on the Gnutella File-Sharing Network. The agent explained that Mr. Geiner originally used this program to download images from others without enabling the sharing feature of the software program to allow others to access and download his computer files. Later, however, Mr. Geiner changed the software settings by clicking a box on the software’s preferences page to facilitate the sharing of certain computer flies with others. 2 According to the agent, Mr. Geiner had learned that he could download flies from others at a faster speed if he permitted others to obtain files from him. As the agent explained, because Mr. Geiner permitted the sharing of his files, he became a “priority trader” when he sought files from other network users. As a priority trader, Mr. Geiner had the benefit of a faster downloading speed, which gave him the ability to obtain files containing child pornography more easily and efficiently. *1107 After hearing from both parties, the District Court decided that the enhancement applied to Mr. Geiner’s case because he had made files containing child pornography available to the public in return for the ability to obtain child pornography at a faster speed.

After the court addressed Mr. Geiner’s objections to the PSR, Mr. Geiner indicated that he wished to call witnesses to testify in his behalf. At this point, the District Court notified the parties that it intended to impose a sentence within the Guidelines, even though the court understood that the Guidelines are not mandatory and it may exercise its discretion to impose a sentence that meets the objectives of the sentencing factors delineated in 18 U.S.C. § 3553(a). The court noted that the Guidelines have “particular value to sentencing judges in this kind of case” and that it should not ignore the Guidelines when a Guidelines sentence meets the purposes of the factors in § 3553(a). In addition, the court explained that, because it intended to apply a Guidelines sentence, it would not consider “impermissible bases for departure.” In response, Mr. Geiner’s counsel indicated that she understood the court’s intentions and that all of the testimony she planned to present was related to a ground for departure under the Guidelines, specifically diminished capacity under U.S.S.G. § 5K2.13.

After hearing Mr. Geiner’s testimony and counsels’ arguments concerning a departure based on diminished capacity, the court accepted the PSR’s total offense level of 37 and decided to sentence Mr. Geiner within the Guidelines range contained in the PSR. Before imposing the sentence, the court asked the parties if they wished to make any additional objections. Neither party objected. The court subsequently sentenced Mr. Geiner to 210 months’ imprisonment, the bottom end of the applicable range under the Guidelines.

On appeal, Mr. Geiner challenges his sentence on two grounds. He argues that the District Court erred in applying the enhancement under U.S.S.G. § 2G2.2(b)(3)(B) and that his sentence is both unreasonable and unconstitutional because the court did not consider the § 3553(a) factors.

II. DISCUSSION

We will set aside Mr. Geiner’s sentence only if it is procedurally or substantively unreasonable in light of the statutory factors contained in 18 U.S.C. § 3553(a). See United States v. Hildreth, 485 F.3d 1120, 1127 (10th Cir.2007). A procedurally reasonable sentence reflects the sentencing court’s calculation of the applicable advisory Guidelines range and its application of the § 3553(a) factors. See United States v. Atencio, 476 F.3d 1099, 1102 (10th Cir.2007). In addition, to impose a procedurally reasonable sentence, the sentencing court must “afford defendants their rights under the

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Bluebook (online)
498 F.3d 1104, 2007 U.S. App. LEXIS 19769, 2007 WL 2358678, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-geiner-ca10-2007.