PUBLISH UNITED STATES COURT OF APPEALS
TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. JUAN LORENZO BARELA, JR., Defendant - Appellant. No. 14-2103

Appeal from the United States District Court for the District of New Mexico (D.C. No. 2:11-CR-00114-RB-1)

Stephen P. McCue, Federal Pu blic Defender, and André C. Poissant, Assistant Federal Public Defender, Las Cruces, New Me xico for Defendant-Appellant. Damon P. Martinez, United States Attorney , and James R.W. Braun, Assistant United States Attorney, Albuquerque, New Mexico for Plaintiff-Appellee.

________________ _________________ Before HARTZ, GORSUCH, and MORITZ , Circuit Judges.

________________ ________________ MORITZ, Circuit Judge.

________________ ________________ After Juan Lorenzo Barela, Jr., pled gu ilty to one count of distributing child pornography and one count of possessing child pornography, the district court imposed a FILED United States Court of Appeals Tenth Circuit 

### August 18, 2015
Elisabeth A. Shumaker Clerk of Court2 controlling sentence of 210 months’ imprisonmen t. That sentence arose in part from the district court’s imposition of a five-level en hancement based on its finding that Barela distributed child pornography “for the receipt, or expectation of receipt, of a thing of value.” U.S.S.G. § 2G2.2(b)(3)(B). The distri ct court also imposed special conditions on Barela’s supervised release, including a restri ction on possession of ma terials depicting or describing “sexually explicit conduct.” Barela argues the district court’s appli cation of the § 2G2.2(b)(3)(B) enhancement is at odds with this court’s precedent in United States v. Geiner , 498 F.3d 1104 (10th Cir. 2007), which held the enhancement requires the government to prove something more than that the defendant distributed child porn ography through a peer-to-peer network. We agree with Barela that Geiner is controlling and resolves this issue, and we remand to the district court with directions to vaca te Barela’s sentence and resentence him. Barela also generally challenges the spec ial conditions of his supervised release based on the district court’s failure to pr ovide reasons for their imposition. And Barela specifically challenges the co ndition prohibiting him from po ssessing materials depicting or describing sexually explicit conduct, ar guing that condition is unrelated to the sentencing factors and violates his First Amendment rights. Based on our plain error review, we conclude Barela fails to show th at either potential error justifies vacating the special conditions.
F ACTUAL B ACKGROUND In 2007, the New Mexico State Police conducted a sting designed to find individuals using peer-to-peer networks to share and view child pornography. That3 investigation led to execution of a search warrant on Barela’s computer, where officers found hundreds of images of child pornograp hy and dozens of child pornography videos. Barela was indicted for and pled guilty to one count of distributing and attempting to distribute a visual depiction of minors engage d in sexually explicit conduct and one count of possessing and aiding and abetting the posse ssion of a visual depiction of a minor engaged in sexually explicit conduct. The presentencing report (“PSR”) recommended applying a five-level enhancement based on Barela’s use of a pe er-to-peer sharing network, LimeWire, to distribute child pornography fo r the “receipt, or expectati on of receipt, of a thing of value, but not for pecuniary gain.” See U.S.S.G. § 2G2.2(b )(3)(B). The PSR also recommended imposing the District of New Mexico’s standard special sex offender conditions, including prohib itions on possessing materials describing or depicting “sexually explicit conduct”; contacting any child ; and loitering near places used primarily by children. At the sentencing hearing, Barela urged the court to reject the § 2G2.2(b)(3)(B) enhancement, contending the government ha d not demonstrated he distributed child pornography expecting anything in return . Although the government presented no testimony or substantive argument on the issue, the district court rejected Barela’s argument without comment after the probation officer reitera ted the PSR’s justification for the enhancement—i.e., that because Barela shared his own child pornography files through a peer-to-peer sharing network, he necessarily expected to receive a thing of value in return.4 The district court sentenced Barela to a controlling sentence of 210 months’ imprisonment and imposed the recommended special conditions of supervised release. Barela appeals, challenging the § 2G2. 2(b)(3)(B) enhancement and the special conditions.
D ISCUSSION I. The district court erred in applying U.S.S.G. § 2G2.2(b)(3)(B) based on Barela’s mere participation in a peer-to-peer network. Barela argues the district court erred in applying U.S.S.G. § 2G2.2(b)(3)(B)’s fivelevel enhancement, which penalizes “[d]istr ibution [of material involving the sexual exploitation of a minor] for the receipt, or e xpectation of receipt, of a thing of value, but not for pecuniary gain.” Instead , Barela insists, the district court should have applied a two-level enhancement under U.S.S.G. § 2G2. 2(b)(3)(F), which penalizes distribution of such material when the defenda nt neither expected any gain nor distributed to a minor. Because Barela objected to the enhancement below, we review the district court’s factual findings for clear error and any legal determinations de novo. See United States v. Kristl , 437 F.3d 1050, 1054 (10th Cir. 2006). In advocating for imposition of U.S. S.G. § 2G2.2(b)(3)(F)’s two-level enhancement, Barela appropri ately concedes his use of a peer-to-peer sharing network constituted “distribution” of child pornography. See United States v. Ray , 704 F.3d 1307, 1311-13 (10th Cir. 2013) (concluding that mere use of a peer-to-peer sharing network to obtain child pornography—even without knowledge that di stribution to others could result from such use—constitute s distribution under U.S.S.G. § 2G2.2(b)(3)(F)). But5 Barela argues that by applying the five-lev el enhancement based on nothing more than his participation in a peer-to-peer network, the district court ran afoul of this court’s holding in United States v. Geiner , 498 F.3d 1104 (10th Cir. 2 007), where the court held that mere installation of file-sharing software or use of a file-sharing network to distribute child pornography did not support the e nhancement’s application. Because the government failed to prove he used LimeWire expecting any gain, Ba rela argues it failed to prove a fact necessary to impose the five-level enhancement—namely, that he distributed “for the receipt, or [in] expectatio n of receipt” of another’s child pornography. The government admits that language in Geiner favors Barela’s position, but argues the language is dicta that this panel need not and should no t follow. Critically, the government conceded in its brief and again at oral argument that if this court disagrees with its characterization of Geiner ’s relevant language as dicta, it must vacate Barela’s sentence. With so much riding on Geiner , we necessarily ex amine it carefully. Geiner’s conviction for in terstate transportation of child pornography and possession of child pornography rested on his use of BearShare, peer-to-peer software that increases the speed by which users can download others ’ files if users share their own files. Like Barela, Geiner argued agains t application of U.S.S.G. § 2G2.2(b)(3)(B)’s five-level enhancement, s uggesting he had no t distributed child pornography in “expectation” of receiving a thi ng of value. The district cour t rejected Geiner’s argument and the court in Geiner affirmed application of the en hancement, reasoning that the government proves “expectation” of a thing of value when a person “‘distributes child pornography in anticipation o f, or while reasonably believing in the possi bility of, the6 receipt of a thing of value.’” 498 F.3d at 1110 (quoting United States v. Maneri , 353 F.3d 165, 169 (2d Cir. 2003)). The panel ultimatel y concluded the gover nment demonstrated Geiner distributed child pornography expec ting a return because he “made his files available to others on the network in anticipation of a faster downloading speed.” Id. (emphasis in original). In reaching this conclusion, the court in Geiner considered and rejected the Eighth Circuit’s interpretation of U. S.S.G. § 2G2.2(b)(3)(B) in United States v. Griffin , 482 F.3d 1008 (8th Cir. 2007 ). Specifically, the Geiner panel rejected Griffin ’s conclusion that the five-level enhancement “automa tically applies ‘to a defendant who downloads and shares child pornography files via an internet peer-to-peer file-sharing network.’” Geiner , 498 F.3d at 1111 (quoting Griffin , 482 F.3d at 1013). Returning to the case at hand, the government points out that in Geiner the government proved more than just simple participation in a file-sharing network by showing that the defendant shared files to obtain faster download speeds. Thus, the government argues, Geiner ’s language rejecting Griffin ’s “automatic enhancement” language was dicta because the Geiner court didn’t “need to decide whether a defendant who shares files on a file-shari ng network necessarily expects to receive a thing of value in the form of access to other users’ files.” Aplee. Br. at 11-12. As the government notes, we have defi ned dicta as “statements and comments in an opinion concerning some rule of law or legal proposition not necessarily involved nor essential to determinati on of the case in hand.” See, e.g. , Rorhbaugh v. Celotex Corp , 53 F.3d 1181, 1184 (10th Cir. 1 995). At first blush, the government’s argument appears7 persuasive. But a careful review of Geiner reveals the flaws in the government’s characterization of Geiner ’s rejection of Griffin as dicta. The Geiner court, writing in 2007, pointed out that this circuit had “yet to interpret the amended language” of U.S.S.G. § 2G 2.2(b)(3)(B), which in cluded the term “expectation.” Thus, in reaching its decision, the court devoted considerable attention to other circuits’ interpretation of that term following the 2000 amen dments to U.S.S.G. § 2G2.2(b)(2). If the panel had simply noted other circuits’ approaches with no particular context, the government’s characteriza tion of the relevant language as dicta might hold more sway. But instead, the court anal yzed those approaches in the context of considering the defendant’s primary argument against applicati on of the enhancement. Specifically, after discussing Geiner’s anticipation of a faster download speed but before deciding whether a faster download speed was a “thing of value,” the court stated, Mr. Geiner acknowledges that he conf igured his software to permit the sharing of his files because he wanted to be able to down load images at a faster speed. Nevertheless, he contends that he did not expect to receive a “thing of value” because he would have had access to the images he sought without allowing others to access his files. He argues that, because he could have downloaded the same images without allowing this access, he did not expect to receive a thing of value. In short, he argues that he did not expect to receive a benefit when he con figured the software on his computer to allow for the distribution of files containing child pornography.
Geiner , 498 F.3d at 1110-11 (emphasis added). The Geiner court then analyzed the defendant ’s argument, ultimately agreeing with Geiner that the mere act of sharing ch ild pornography on a peer-to-peer network is insufficient to support the enhancement, but concluding the government proved that the8 defendant did more than just share child pornography. In doing so, the panel discussed the Eighth Circu it’s analysis in Griffin and essentially characterized as overbroad Griffin ’s conclusion that “the [five-level] enha ncement automatically applies” to a person who uses a peer-to-peer network. 1 The Geiner panel pointed out that although “file sharing may be the purpose of these networ ks,” a “defendant who distributes childpornography files by sharing them on a file-sha ring network does not necessarily do so in exchange for similar files, par ticularly when the de fendant understands that these files are available even if he chooses not to share his own.” Id. at 1111. The court then held, “Rather, whether a defendant distributes files containing child pornography for the receipt, or expectation of receipt, of other f iles available on the netw ork is a question of fact properly resolved on a case-by-case basis by the sentencing court.” Id. (emphasis in original). The court thus established a “base line” approach as to what is not enough to establish an “expectation,” agreeing with Geiner that his distribution of child pornography through a peer-to-peer network didn’t warrant the enhancement. The court then proceeded to apply its “case-by-case” approach to the government’s contention that Geiner had distributed child pornography expec ting a thing of value in return because he

1 The Eighth Circuit has since criticized Geiner ’s interpretation of Griffin as holding the five-level enhancement applies wh enever an individual uses a peer-to-peer network. See United States v. Stults , 575 F.3d 834, 848-49 (8th Cir. 2009). In Stults , the Eighth Circuit emphasized that Griffin ’s discussion flowed from the defendant’s admission in that case that he expected to receive child pornography when he used Kazaa, another file sharing program. For our purposes, however, th e Eighth Circuit’s subsequent interpretation of Griffin is not relevant; rather, our concern is how this court considered Griffin in reaching its ultimate holding.9 elected to share his files in return for faster downloadi ng capabilities. Ultimately, the court concluded this evidence warranted the enhancement. Id. at 1112. 2 Reviewed in context, it is apparent that Geiner ’s rejection of Griffin ’s perceived holding was integral to a nd necessarily involved in Geiner ’s ultimate resolution of the issue. After all, if Geiner had concluded that mere use of a peer-to-peer sharing network

was sufficient to support the enha ncement, it would have been unnecessary for the panel to consider whether Geiner’s actions exceed ed that baseline activity —proof of his mere use would have sufficed to sup port the enhancement. That the Geiner panel ultimately concluded the government proved more than mere use by establishing that Geiner anticipated increased down load speeds does not render the panel’s discussion of Griffin dicta. Returning to the case before us, the gove rnment acknowledges that the district court applied the enhancement based on nothing more than Ba rela’s use of LimeWire to distribute child pornography. An d the government concedes th at if we elect to follow
Geiner , the district court clearly erred in applyi ng the enhancement. Aplee Br. at 8 (“If this court chooses to follow the Geiner panel’s dicta, then the district court’s

2 Notably, other circuits have agreed with Geiner that the “inherent reciprocity” of peer-to-peer networks doesn’t warrant the en hancement’s application because some users recognize that participation in the network do es not necessarily require a person to share files. See United States v. McManus, 734 F.3d 315, 320-21 (4th Cir. 2013) (viewing Geiner as rejecting the concept that the “inhe rent reciprocity” of sharing networks justifies application of th e five-level enhancement); United States v. Vadnais , 667 F.3d 1206, 1209-10 (11th Cir. 2012) (citing Geiner and determining that because sharing networks allow individuals to download file s without sharing, th e enhancement is not warranted merely because a pe rson downloaded files and a llowed others to download from him).10 determination that Barela’s use of a peer-to- peer file-sharing program alone justifies the enhancement was clearly erroneous.”). Having concluded that Geiner ’s discussion was not dicta, we hold the district court clearly erred in applying the enhancement and remand to the district court with directions to va cate Barela’s sentence and resentence him. II. The district court erred in imposing the special sex offender conditions on Barela’s supervised release, but no error warrants vacating the conditions. Barela urges this court to vacate all of the special sex offender conditions imposed on his supervised release because the distri ct court failed to provide any reasons for imposing them. Barela also argues we mu st vacate the conditio n prohibiting him from viewing or possessing materials containing “sexually explicit conduct” because the condition is unrelated to the statutory factors in 18 U.S.C. § 3553(a ), involves a greater deprivation of liberty th an necessary, and violates the First Amendment. Because Barela failed to object to any of the special conditions, we review both claims for plain error. See United States v. Burns , 775 F.3d 1221, 1223 (10th Cir. 2014) (explaining reversal is warranted under plain error test when error is clear and obvious under current law; affects substantial rights; a nd seriously affects the fairness, integrity or public reputation of judicial proceedings). We conclude the district court erred by failing to justify the special conditions but the e rror does not warrant vacating those conditions. Similarly, Barela has not me t his burden to prove the cond ition prohibiting possession of materials depicting or describing sexually ex plicit conduct was clear or obvious and this claim also fails.11 A. The district court erred by failing to prov ide at least a generalized statement of the reasons for imposing special conditions but Barela has fa iled to prove that the error affected the proceeding. Regarding Barela’s first argument, the go vernment concedes the district court erred in failing to provide at least a genera lized statement of its reasons for imposing the District of New Mexico’s sp ecial sex offender conditions for supervised release. But because Barela failed to make this argumen t below, the government points out that we must review this assertion for plain error an d argues that Barela fails to show the error justifies vacating the conditions. Under plain error review, we may vacate special conditions of supervised release only if the record reveals no basis for the cond itions. If the record reveals a basis, there is no reasonable probability that but for the error the defe ndant’s sentence would be different and thus the proceeding’s fairness was not impacted. See United States v. Kieffer , 681 F.3d 1143, 1172 (10th Cir. 2012) (holdi ng that when a district court fails to provide reasons for imposing sp ecial conditions and the defendant fails to object, we review for plain error); see also Burns , 775 F.3d at 1224-25 (concl uding district court’s failure to make requisite findings before im posing special condition affected defendant’s substantial rights and undermined fairness, integrity, or reputation of proceedings because, but for failure to address requirement s, district court pr obably wouldn’t have imposed special condition). Here, Barela’s disc ussion of the record is scant; he simply claims in his initial brief that because he had “no history of violent cr imes or sex offenses against adults or children,” no “reasons [to impose the special condition] are discernible from the record.” Aplt. Br. at 16. The govern ment argues we should not consider “such a12 bare-bones argument.” Aplee. Br. at 18. Whether we refuse to consider Barela’s argument due to inad equate briefing or consider its merits, we reach the same result. Broadly speaking, the conditions the district court imposed impeded Barela’s access to ch ildren and required monitoring of his online activities. We have reviewed th e record and conclude that gi ven the nature and scope of the conduct underlying the offense, Barela’s history, and the results of his psychological evaluation, the record suppo rts the district court’s imposition of the conditions. See United States v. Mike , 632 F.3d 686, 693 (10th Cir. 2011) (finding record supported conditions due to result of psychological evalua tions, nature of the offense, and defendant’s failure to comply with regist ration requirements); see also United States v. Martinez-Torres , No. 14-2081, __ F.3d __, Slip op . 15-18 (10th Cir. July 31, 2015) (vacating condition prohibiting possessing mate rial depicting or describing sexually explicit conduct because district court failed to justify condition, the record contained no evidence suggesting defendant viewed pornography, and sexua lly explicit materials did not contribute to the defendant ’s underlying offense). Accord ingly, Barela has failed to show the error affected either his substantial rights or the reputation or fairness of the proceeding. B. Barela has not demonstrated any “c lear or obvious” error in prohibiting him from viewing or possessing any materials depicting or describing “sexually explicit conduct or pornography.” Next, Barela takes issue with the co ndition prohibiting him from “viewing or possessing any material . . . de picting and/or describing sexually explicit conduct or13 pornography,” 3 arguing the condition is not related to the relevant sentencing factors listed in 18 U.S.C. § 3553(a), that it involves a greater deprivation of liberty than necessary, and that it infringes on his Firs t Amendment rights. Because Barela did not object to this condition below, we again review for plain error. See Burns , 775 F.3d at
1223. Barela devotes substantial briefing to his a ssertion that the district court erred in imposing this condition, but he fails to addr ess the other three prongs of the plain error standard. Seizing on this fa ilure, the government argues United States v. Mike , 632 F.3d 686, 693 (10th Cir. 2011) controls our decision. In Mike , we applied plain error review to similar arguments against a similar condition and concluded the erro r was neither clear nor obvious. 632 F.3d at 700 (c iting circuit split on issue of whether imposition of similar condition is plain error). Barela fails to argue that the circuit split identified in Mike has dissipated. 4 And while the law has evolved since Mike , the split this court id entified there persists. Compare United States v. Medina , 779 F.3d 55, 61-64 (1st Cir. 2015) (concluding ban on possessing “sexually simulating” material was plain error), United States v. Gnirke , 775 F.3d 1155, 1163-65 (9th Cir. 2015) (conc luding ban on access to “sexually explicit

3 “Sexually explicit conduct” is define d as “actual or simulated” sexual intercourse, bestiality, masturbation, sadistic or masochistic abus e, or “lascivious exhibition of the genitals or pubic area of any person.” 18 U.S.C. § 2256(2)(A). 4 This panel recently held in Martinez-Torres , Slip op. at 18, that the district court erred in imposing a simila r special condition. But Martinez-Torres doesn’t aid Barela, because in that case, the defendant objected to the condition. Reviewing for abuse of discretion, we vacated the condition, conclu ding the record contained no evidence to support the condition.14 material” constituted greater depriv ation of liberty than necessary), and United States v. Goodwin , 717 F.3d 511, 524-25 (7th Cir. 2013) (c oncluding that restriction on material depicting or alluding to sexual activity wa s not reasonably related to the statutory conditions and resulted in greater depr ivation of liberty than necessary), with United States v. Mefford , 711 F.3d 923, 927-28 (8th Cir. 2013) (finding no error in imposing a condition banning pornog raphy or erotica), and United States v. Zobel , 696 F.3d 558, 576-77 (6th Cir. 2012) (notin g circuit split and determini ng ban on pornography and sexually explicit materials was not error). Moreover, given Barela’s circumstances—i. e., his convictions for distributing and possessing child pornography and his histor y of voracious pornography viewing—the cases he cites are distinguis hable and do not show that th e error here was clear or obvious. Cf. Mike , 632 F.3d at 700-01 (reasoning that , in addition to circuit split, error was not plain given results of defendant’s background, psychosexual evaluations, mental health assessments, and th e “gruesomeness” of his prior sexual offense). Finally, although Mike did not address the condition’s potential First Amendment implications, it is not “obvious or clear ” that the conditions violated Barela’s constitutional rights. See Zobel , 696 F.3d at 576-77 (findi ng similar condition did not violate the First Amendment); see also Mefford , 711 F.3d at 927-28 (same).
C ONCLUSION We conclude the district court erred in imposing the five-level enhancement and remand for resentencing. Findin g no plain error in the distri ct court’s imposition of the special sex offender conditions for supervised release, we affirm those conditions.