United States Court of Appeals

For the Eighth Circuit

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No. 14-2857

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United States of America

lllllllllllllllllllll Plaintiff - Appellee

v.

Arleigh Joe Esqueda

lllllllllllllllllllll Defendant - Appellant

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Appeal from United States District Court 

for the Southern District of Iowa - Des Moines

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 Submitted: March 9, 2015

 Filed: April 9, 2015

[Unpublished] 

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Before WOLLMAN, BEAM, and COLLOTON, Circuit Judges.

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PER CURIAM. 
Arleigh Joe Esqueda pleaded guilty to one count of possession of child

pornography, in violation of 18 U.S.C. § 2252(a)(4)(B). Esqueda appeals the district

court’s imposition of a sentence of 168 months’ imprisonment. We affirm.

1

Esqueda contends that the district court erroneously applied the United States

Sentencing Guidelines (U.S.S.G. or Guidelines) when it increased his base offense

level by 5 under § 2G2.2(b)(3)(B). In reviewing the district court’s advisory

Guidelines calculation, we review its factual findings for clear error and its

application of the Guidelines de novo. United States v. Lynch, 757 F.3d 780, 782

(8th Cir. 2014). 

The Guidelines provide for an increase in the base offense level when the

offense—in this case, possession of child pornography—also involved distribution. 

The Guidelines specify a 5-level enhancement if the offense 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), which means “any transaction, including bartering

or other in-kind transaction, that is conducted for a thing of value, but not for profit,”

id. § 2G2.2 cmt. n.1. The 5-level enhancement thus “applies to a defendant who

downloads and shares child[-]pornography files via an internet peer-to-peer filesharing network, as these networks exist . . . for users to share, swap, barter, or trade

files [among] one another.” United States v. Griffin, 482 F.3d 1008, 1013 (8th Cir.

2007). The 5-level enhancement, however, does not apply automatically merely

because the defendant installed file-sharing software; instead, the district court must

decide on a case-by-case basis whether the defendant qualifies for the enhancement. 

United States v. Ultsch, 578 F.3d 827, 830 (8th Cir. 2009). The government bearsthe

burden of proving that the defendant expected to receive a thing of value through his

use of the file-sharing program. Id. The government can meet this burden either

The Honorable James E. Gritzner, then Chief Judge, United States District 1

Court for the Southern District of Iowa.

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through direct evidence—“such as an admission by the defendant that he knew he

was using a file-sharing network, and could download files from others who could

download files from him”—or through indirect or circumstantial evidence, “such as

the defendant’s technicalsophistication in computers.” United States v. Bastian, 603

F.3d 460, 466 (8th Cir. 2010). Absent concrete evidence of ignorance, “a fact-finder

may reasonably infer,” through circumstantial evidence, “that the defendant

knowingly employed a file[-]sharing programfor its intended purpose,” UnitedStates

v. Dodd, 598 F.3d 449, 452, 452 n.2 (8th Cir. 2010), i.e., to “share, swap, barter, or

trade files,” Griffin, 482 F.3d at 1013. See also United States v. Dolehide, 663 F.3d

343, 347-48 (8th Cir. 2011) (applying this rule in the context of § 2G2.2(b)(3)(B)’s

5-level enhancement).

Esqueda first argues that we should abandon our former construction of

§ 2G2.2(b)(3)(B) and should adopt instead the reasoning set forth in the concurring

opinion in Bastian, 603 F.3d at 467-68 (Colloton, J.). But our panel is without power

to overrule another panel’s earlier decision. Jackson v. Ault, 452 F.3d 734, 736 (8th

Cir. 2006). We therefore are bound to apply the law of the Eighth Circuit as it exists

at present.

Esqueda also argues that even under the law of this Circuit as it currently

stands, the district court failed to performthe required case-by-case analysis to ensure

that the government had met its burden of establishing that Esqueda shared files in

expectation of receipt of a thing of value. See, e.g., United States v. Durham, 618

F.3d 921, 926-27, 931 (8th Cir. 2010) (emphasizing that the application of a

distribution enhancement must be determined on a case-by-case basis). The district

court stated, however, that it was making its decision based on its review of the

record. The Presentence Investigation Report, which the district court adopted as its

factual findings, stated that Esqueda had personallyinstalled the file-sharing program,

that he had described his knowledge of computers as “advanced,” that he had his own

webpage, that he was skilled at computer programming and repair, that he was in

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possession of 351 images and 77 videos depicting child pornography buried deep in

layers of folders on his computer, and that he had been downloading childpornography filessince at least December 2008. Moreover, law-enforcement officers

were able to download three child-pornography files from Esqueda’s computer

through a peer-to-peer file-sharing network. The only evidence Esqueda offered to

rebut the government’s circumstantial evidence was a statement made to a lawenforcement agent that he did not share or trade files. In light of our precedent,

however, the district court’s decision to disbelieve Esqueda’s statement to law

enforcement, and its conclusion that Esqueda had not made a sufficiently strong

showing to rebut the government’s circumstantial evidence, was not clearly

erroneous. See Lynch, 757 F.3d at 782 (holding that, given evidence that the

defendant actually shared files with law enforcement, was computer savvy, and

personally installed the file-sharing programs, the district court did not clearly err in

applying the 5-level enhancement, despite the defendant’s statements during a police

interview suggesting that he lacked knowledge that he was sharing files). 

Accordingly, we affirm the sentence and the district court’s application of the

5-level enhancement to calculate the Guidelines range.

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