UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 14-4658

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

JOHN D. HAYES,

Defendant - Appellant.

Appeal from the United States District Court for the Southern 

District of West Virginia, at Huntington. Robert C. Chambers,

Chief District Judge. (3:13-cr-00124-1)

Submitted: April 30, 2015 Decided: May 22, 2015

Before SHEDD, FLOYD, and THACKER, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Brian J. Kornbrath, Acting Federal Public Defender, David R. 

Bungard, Assistant Federal Public Defender, Jonathan D. Byrne, 

Appellate Counsel, Charleston, West Virginia, for Appellant. R. 

Booth Goodwin II, United States Attorney, Jennifer Rada Herrald,

Assistant United States Attorney, Charleston, West Virginia, for 

Appellee.

Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:

Following a bench trial, John D. Hayes was convicted of

attempted distribution and possession of child pornography, in 

violation of 18 U.S.C. § 2252A(a)(2), (5)(B) (2012). The 

district court sentenced Hayes to 180 months in prison. Hayes 

appeals his convictions and sentence. Finding no error, we

affirm.

Hayes contends that the district court erred in rejecting 

his guilty plea to possession of child pornography. “Before a 

court may enter judgment on a plea of guilty, it must find a 

sufficient factual basis to support the plea.” United States v. 

Mitchell, 104 F.3d 649, 652 (4th Cir. 1997); see Fed. R. Crim. 

P. 11(b)(3). The factual basis requirement “ensures that the 

court make clear exactly what a defendant admits to, and whether 

those admissions are factually sufficient to constitute the 

alleged crime.” United States v. DeFusco, 949 F.2d 114, 120 

(4th Cir. 1991). “The trial court has wide discretion in 

determining whether a factual basis exists,” United States v. 

Morrow, 914 F.2d 608, 611 (4th Cir. 1990), and the court may 

make that determination “by having the accused describe the 

conduct that gave rise to the charge,” Santobello v. New York, 

404 U.S. 257, 261 (1971).

To prove possession of child pornography, the Government 

must show that the defendant knowingly possessed images of child 
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pornography. 18 U.S.C. § 2252A(a)(5). An act is knowing if it 

is done “voluntarily and intentionally and not because of 

mistake or accident or other innocent reason.” United States v. 

Shrader, 675 F.3d 300, 309 (4th Cir. 2012) (internal quotation 

marks omitted). “A possessor of child pornography videos need 

not know that it is such at the time of download, so long as he 

discovers that it is child pornography after the download and 

decides to keep it anyway.” United States v. Carani, 492 F.3d 

867, 875 (7th Cir. 2007). 

In this case, the court exercised its discretion to reject 

the guilty plea because it concluded that Hayes refused to admit 

to the core conduct of the offense, thus raising questions about 

the factual basis for the plea. In light of Hayes’ testimony at 

the plea hearing and the “deference [that we must accord] to the 

trial court’s decision as to how best to conduct the mandated 

colloquy with the defendant,” DeFusco, 949 F.2d at 116, we 

cannot conclude that the court erred in this respect.

Hayes next asserts a Confrontation Clause challenge to the 

admission of reports indicating that he was sharing child 

pornography over a peer-to-peer network. The reports were 

generated automatically by a computer program, not by a person. 

“Evidence implicates the Confrontation Clause only if it 

constitutes a testimonial statement—that is, a statement made 

with a primary purpose of creating an out-of-court substitute 
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for trial testimony.” United States v. Reed, 780 F.3d 260, 269

(4th Cir. 2015) (internal quotation marks omitted). Data 

generated by a machine, where the only source of the statement 

is the machine printout and not a person, is not subject to the 

Confrontation Clause. United States v. Washington, 498 F.3d 

225, 229-30 (4th Cir. 2007); see also United States v. Lamons, 

532 F.3d 1251, 1264 (11th Cir. 2008) (statements made by 

machines and not by humans are exempt from purview of 

Confrontation Clause). We conclude that the admission of the 

challenged reports did not violate the Confrontation Clause.

Hayes next challenges the sufficiency of the evidence 

supporting his conviction for the attempted distribution of 

child pornography. We review the sufficiency of the evidence 

underlying a criminal conviction “by determining whether there 

is substantial evidence in the record, when viewed in the light 

most favorable to the government, to support the conviction.” 

United States v. Jaensch, 665 F.3d 83, 93 (4th Cir. 2011) 

(internal quotation marks omitted). In evaluating the 

sufficiency of the evidence, we do not review the credibility of 

the witnesses, and we assume that the factfinder resolved all 

contradictions in the testimony in favor of the Government. 

United States v. Foster, 507 F.3d 233, 245 (4th Cir. 2007). We

will not overturn a verdict if “any rational trier of fact could 

have found the essential elements of the crime beyond a 
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reasonable doubt.” United States v. Dinkins, 691 F.3d 358, 387 

(4th Cir. 2012) (internal quotation marks and emphasis omitted).

The evidence established that Hayes possessed substantial 

knowledge about computers and knowingly used a file-sharing 

program that allowed others to access child pornography files

stored in his shared folder. We conclude that the evidence was 

sufficient to support Hayes’ conviction for attempted 

distribution. See United States v. Collins, 642 F.3d 654, 656-

57 (8th Cir. 2011) (finding sufficient evidence of attempted 

distribution of child pornography where defendant downloaded, 

installed, and used file-sharing program and possessed knowledge 

of computers); see also United States v. Dunn, 777 F.3d 1171, 

1175 (10th Cir. 2015) (defendant’s placement of child 

pornography files into shared folder accessible to other users 

was sufficient to establish distribution even without active 

transfer of possession to another user).

Finally, Hayes claims that his sentence of 15 years was 

unconstitutional because the indictment did not allege the 

existence of a prior conviction.∗

 As Hayes acknowledges, his 

claim is foreclosed by Supreme Court precedent as well as our 

 ∗ Hayes was previously convicted in West Virginia of sexual 

assault in the second degree, involving a minor, which subjects

him to a mandatory minimum sentence of 15 years’ imprisonment 

and a maximum possible sentence of 40 years. See 18 U.S.C. 

§ 2252A(b)(1) (2012). 
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own and is thus unavailing. See Almendarez-Torres v. United 

States, 523 U.S. 224, 233-36, 243-44 (1998); United States v. 

Cheek, 415 F.3d 349, 351-54 (4th Cir. 2005) (reaffirming 

continued validity of Almendarez-Torres following United States 

v. Booker, 543 U.S. 220 (2005)). 

Accordingly, we affirm the district court’s judgment. We 

dispense with oral argument because the facts and legal 

contentions are adequately presented in the materials before 

this court and argument would not aid the decisional process. 

AFFIRMED