United States v. Nathaniel Struening

• Court: Court of Appeals for the Eleventh Circuit
• Decided: July 2, 2025
• Docket: 24-11082
• Status: Unpublished

Opinion

USCA11 Case: 24-11082 Document: 33-1 Date Filed: 07/02/2025 Page: 1 of 6

[DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit

____________________

No. 24-11082 Non-Argument Calendar ____________________

UNITED STATES OF AMERICA, Plaintiff-Appellee, versus NATHANIEL DAVID STRUENING,

Defendant-Appellant.

Appeal from the United States District Court for the Northern District of Alabama D.C. Docket No. 7:23-cr-00265-LSC-NAD-1 ____________________ USCA11 Case: 24-11082 Document: 33-1 Date Filed: 07/02/2025 Page: 2 of 6

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Before NEWSOM, BRANCH, and ANDERSON, Circuit Judges. PER CURIAM: Nathaniel Struening appeals his 188-month imprisonment sentence for attempted transportation of child pornography and possession of child pornography. On appeal, he argues that the dis- trict court plainly erred in applying a five-level enhancement under U.S.S.G. § 2G2.2(b)(3)(B) for distribution of child pornography “in exchange for any valuable consideration.” Even if the district court erred, the error was not plain, and so we affirm. I We review de novo the district court’s application of the Guidelines and review factual findings for clear error. United States v. Little, 864 F.3d 1283, 1290 (11th Cir. 2017). Unpreserved sentenc- ing objections, however, are reviewed only for plain error. United States v. Corbett, 921 F.3d 1032, 1037 (11th Cir. 2019). To establish plain error, Struening must show that (1) the district court erred, (2) the error was plain, and (3) the error affected his substantial rights. Rosales-Mireles v. United States, 585 U.S. 129, 134 (2018). “Once those three conditions have been met, the court of appeals should exercise its discretion to correct the forfeited error if the er- ror seriously affects the fairness, integrity or public reputation of judicial proceedings.” Id. at 135 (citation modified). “An error is plain if ‘the explicit language of a statute or rule or precedent from the Supreme Court or [our] Court directly resolves the issue’ and establishes that an error has occurred.” United States v. Boone, 97 USCA11 Case: 24-11082 Document: 33-1 Date Filed: 07/02/2025 Page: 3 of 6

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F.4th 1331, 1339 (11th Cir. 2024) (quoting United States v. Innocent, 977 F.3d 1077, 1081 (11th Cir. 2020)). Because Struening did not object at sentencing to the enhancement he now challenges, we apply plain-error review here. II For those convicted of transportation of child pornography, the Sentencing Guidelines provide for a five-level enhancement “[i]f the defendant distributed [the pornography] in exchange for any valuable consideration, but not for pecuniary gain.” U.S.S.G. § 2G2.2(b)(3)(B). We have held that a defendant qualified for a five- level enhancement under the pre-2016 version of § 2G2.2(b)(3)(B) because he “trade[d] child pornography in exchange for other child pornography.” Little, 864 F.3d at 1290 (quoting United States v. Bender, 290 F.3d 1279, 1286 (11th Cir. 2002)). 1 For the guideline to apply, there must be evidence “show[ing] the connection between the defendant’s distribution and the receipt or expectation of re- ceipt of a thing of value.” United States v. Vadnais, 667 F.3d 1206, 1209 (11th Cir. 2012); see id. (“There must be some other evidence, whether direct or circumstantial, that a defendant reasonably be- lieved that he would receive something of value . . . .”). In keeping with this, we have held that a district court erred in imposing the

1 Before 2016, the guideline provided for a five-level enhancement if the of-

fense involved “[d]istribution for the receipt, or expectation of receipt, of a thing of value, but not for pecuniary gain.” U.S.S.G. § 2G2.2(b)(3)(B) (2015). None of our analysis here hinges on the 2016 amendments to the guideline, and the parties do not suggest otherwise. USCA11 Case: 24-11082 Document: 33-1 Date Filed: 07/02/2025 Page: 4 of 6

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enhancement when there was no “evidence that [the defendant] and another user conditioned their decisions to share their illicit image collections on a return promise to share files.” United States v. Spriggs, 666 F.3d 1284, 1288 (11th Cir. 2012). In this case, the propriety of the enhancement turns on a spare, agreed-to passage in the presentence investigation report. According to the PSR: Struening, under his username “FREDPEABODY”, was a member of a KIK group dedicated to the trade of child pornography. “FREDPEABODY” shared CSAM with the KIK group and had access to multiple images and videos shared by other users within the group chat. These chat rooms on KIK operated with a built-in expectation that an exchange of CSAM would take place.

PSR ¶ 36, Dkt. No. 39 (emphasis added). 2 It was permissible for the district court to consider these undisputed statements during sen- tencing. See United States v. Aguilar-Ibarra, 740 F.3d 587, 592 (11th Cir. 2014) (“[T]he defendant’s failure to object to conclusory state- ments in the PSR renders those statements undisputed and permits

2 Struening appears to argue that the statement “operated with a built-in ex-

pectation that an exchange of CSAM would take place” did not constitute a stipulated fact because it was contained in the Guidelines calculation section of the PSR rather than the offense conduct portion. But he points us to no portion of the record indicating that this statement was not agreed to—to the contrary, not only did he fail to object to the statement below, but he also conceded this point in his own sentencing memorandum. USCA11 Case: 24-11082 Document: 33-1 Date Filed: 07/02/2025 Page: 5 of 6

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the sentencing court to rely upon them without error even if there is an absence of supporting evidence.” (citation modified)). Even if the application of the five-level enhancement was er- ror, it was not plain error. Both Spriggs and Vadnais involved the use of peer-to-peer file sharing sites to make child pornography available for download by others. See Spriggs, 666 F.3d at 1288; Vadnais, 667 F.3d at 1209. In both cases, we held that there was insufficient evidence that the defendants made the illicit material available for the purpose of receiving something in return. See Spriggs, 666 F.3d at 1288; Vadnais, 667 F.3d at 1209. Struening’s case is a little different. Vadnais and Spriggs both merely saved child pornography in peer-to-peer sharing folders where it could be ac- cessed by others, while Struening affirmatively sent pornography to others and received it in kind. See Vadnais, 667 F.3d at 1209; Spriggs, 666 F.3d at 1288; PSR ¶ 36; Plea Agreement 5–7, Dkt. No. 23. Further, here, there’s at least a bit of evidence that Struening did indeed intend to participate in an exchange: He admitted that he participated in a KIK group where the exchange of abuse mate- rial occurred, that he both sent and viewed abuse material through the group, and that the group was intended to function as a place for exchanging abuse material. True, there is some ambiguity in the PSR given its use of the passive voice—who, specifically, had the expectation that an exchange would occur? See PSR ¶ 36 (“These chat rooms on KIK operated with a built-in expectation that an ex- change of CSAM would take place.”). But we require only “cir- cumstantial” evidence “that a defendant reasonably believed that he would receive something of value by making his child USCA11 Case: 24-11082 Document: 33-1 Date Filed: 07/02/2025 Page: 6 of 6

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pornography files available.” Vadnais, 667 F.3d at 1209. And our cases have never set out a particular rule about what evidence is sufficient to show a defendant’s reasonable belief that he would re- ceive something in return. See Spriggs, 666 F.3d at 1288; Vadnais, 667 F.3d at 1209–10; Bender, 290 F.3d at 1286–87. Accordingly, it cannot be that applying the enhancement to Struening was con- trary to “the explicit language of a statute or rule or precedent from the Supreme Court or this Court.” Boone, 97 F.4th at 1339 (citation modified). III For the foregoing reasons, we hold that the district court did not commit plain error in applying the § 2G2.2(b)(3)(B) enhance- ment to Struening. AFFIRMED.