Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not *

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-10913

Summary Calendar

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

JAMES DANIEL MOORE

Defendant-Appellant

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 4:08-CR-05-ALL

Before JONES, Chief Judge, and DENNIS and HAYNES, Circuit Judges.

PER CURIAM:*

James Daniel Moore appeals the 151-month sentence he received for

transporting or shipping four images of child pornography in violation of

18 U.S.C. § 2252(a)(1). He asserts that the district court committed significant

procedural errors by imposing two enhancements under the Sentencing

Guidelines. He asserts that the court clearly erred by finding that his possession

of a sadistic or violent image on the same computer that was used to transport

the four images was relevant conduct under U.S.S.G. § 1B1.3. The evidence

United States Court of Appeals

Fifth Circuit

F I L E D

July 1, 2009

Charles R. Fulbruge III

Clerk
No. 08-10913

1

 Although this court’s unpublished opinions are not precedential, we may cite them

for their persuasive value and to maintain consistency in circuit law.

2

supports the district court’s finding that Moore possessed the sadistic image and

the other four images as part of a common scheme or plan to use file-sharing

software to search for, download, and view child pornography and then to delete

it. Because it was plausible from the record either that Moore possessed the

sadistic image using the same modus operandi he used for the four downloaded

images, or that his possession of the sadistic image was part of a series of

ongoing offenses, the district court did not clearly err in finding that the sadistic

image was relevant conduct. See United States v. Ekanem, 555 F.3d 172, 175

(5th Cir. 2009); § 1B1.3, cmt. (n.9(A), (B)).

Moore also asserts that the district court clearly erred in imposing a fivelevel enhancement under U.S.S.G. § 2G2.2 by finding that he transported the

four images in expectation of receiving a thing of value. Where, as here, the

defendant uses file-sharing software to obtain images of child pornography,

“there is a natural expectation that he will do his bit for the relationship by

sending or continuing to send his own images in return.” United States v.

Sistrunk, 37 F. App’x. 88, *1 (5th Cir. 2002) (unpublished). The district court 1

need not find that the transfer of child pornography was “made on a strict, quid

pro quo basis.” Id. 

The file-sharing software allowed Moore to access images of child

pornography from others’ computers and to make his own images available for

download by others. The record established that he was a knowledgeable

computer user who understood the purpose of file-sharing software and how it

worked. He admitted using the software to obtain child pornography. There

was no indication that he sought to disable the feature of the software that

allowed others to download images from his computer. The district court’s
No. 08-10913

3

finding thus was plausible in light of record, and there was no clear error. See

Ekanem, 555 F.3d at 175. 

AFFIRMED.