UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee, 

v. 

ELI TRAUFIELD, 

 Defendant - Appellant. 

No. 18-1061 

(D.C. No. 1:16-CR-00078-RBJ-1) 

(D. Colo.) 

_________________________________ 

ORDER AND JUDGMENT*

_________________________________ 

Before McHUGH, BALDOCK, and KELLY, Circuit Judges. 

_________________________________ 

 Eli Traufield appeals his sentence of 108 months in prison and ten years of 

supervised release for possession of child pornography in violation of 18 U.S.C. 

§ 2252A(a)(5)(B). Traufield disputes the procedural and substantive reasonableness 

of his sentence and challenges several conditions of his supervised release. His 

attorney has moved to withdraw and filed a brief pursuant to Anders v. California, 

386 U.S. 738 (1967), stating there are no non-frivolous grounds to appeal. We agree, 

 * After examining the briefs and appellate record, this panel has determined 

unanimously that oral argument would not materially assist in the determination of 

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore 

ordered submitted without oral argument. This order and judgment is not binding 

precedent, except under the doctrines of law of the case, res judicata, and collateral 

estoppel. It may be cited, however, for its persuasive value consistent with 

Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. 

FILED 

United States Court of Appeals 

Tenth Circuit 

April 9, 2019

Elisabeth A. Shumaker 

Clerk of Court
2 

and therefore, exercising jurisdiction under 28 U.S.C. § 1291, we grant counsel’s 

motion to withdraw and dismiss this appeal. 

I 

 A federal grand jury indicted Traufield on two counts of distributing child 

pornography, 18 U.S.C. § 2252A(a)(2) and (b)(1), and one count of possession of 

child pornography, id. § 2252A(a)(5)(B) and (b)(2). Traufield pleaded guilty to 

count three in exchange for the government’s dismissal of counts one and two.1, 2

 

The initial presentence investigation report (PSR) determined Traufield possessed 

1,638 images and 43 videos of child pornography on his computer, yielding a 

sentencing range of 108 to 135 months in prison, with a 120-month statutory 

maximum sentence. Traufield objected, arguing, among other things, that images 

recovered from his computer’s “unallocated space” and/or “shadow copies” should 

not be attributed to him as relevant conduct for sentencing purposes. R., Vol. 1 at 

79-82. He also argued in a sentencing memo that the sentencing factors at 18 U.S.C. 

§ 3553(a) warranted a below-Guidelines sentence of no more than 60 months in 

prison. The government disagreed, arguing that the sentencing factors warranted the 

 1

 Some of Traufield’s arguments challenge his conviction, but those arguments 

are foreclosed by his guilty plea. See United States v. De Vaughn, 694 F.3d 1141, 

1151 (10th Cir. 2012) (“‘A guilty plea is more than a confession which admits that 

the accused did various acts. It is an admission that he committed the crime charged 

against him.’” (quoting United States v. Broce, 488 U.S. 563, 570 (1989)). 

2

 As part of his plea agreement, Traufield executed an appeal waiver, which 

the government previously moved to enforce. We denied the government’s motion 

without prejudice, but the government has not renewed its motion; instead it agrees 

with counsel’s assessment that there are no non-frivolous issues for appeal. 
3 

statutory maximum sentence of 120 months in prison. A revised PSR rejected 

Traufield’s objections relating to his sentencing calculation, maintained that the 

applicable sentencing range was 108 to 120 months in prison, and recommended a 

sentence of 108 months followed by ten years of supervised release. 

 At sentencing, the district court heard expert testimony from FBI forensic 

examiner James Stevens. Stevens explained that a file deleted from a computer will 

result in “unallocated” space and can be restored with forensic software. R., Vol. 4 

at 61, 101, 133. He distinguished this type of restored file from “shadow copies,” 

which are back-up files automatically created by Windows operating systems at 

specific points in time via a virtual shadow service (VSS). See id. at 62-65, 91, 

134-35. He explained that these shadow copies enable a user to go back and view the 

computer as it existed at certain dates and times simply by navigating through 

Windows Explorer on the desktop if, for example, a user wants to retrieve an 

accidentally deleted file. 

Stevens testified that using VSS, he was able to restore a file-sharing program 

used by Traufield called GigaTribe. Id. at 91. He stated that once he restored the 

program, he was able to access it as it appeared on certain dates. See id. at 92-93. 

He selected July 29, 2013, which restored three GigaTribe subfolders containing 715 

images and 18 videos3

 of child pornography. Id. at 93-94, 99-100. Stevens 

emphasized that this material was retrieved using VSS, it was not restored from the 

 3

 Stevens later testified that he restored 25 videos depicting child pornography. 

See R., Vol. 4 at 154-55. 
4 

computer’s unallocated space, and it “could be accessed on [Traufield’s] computer on 

that date by simply going down to . . . Windows Explorer, navigating down to the 

folder, clicking, and the files would be listed, and you could open those files from 

that location.” Id. at 154. Although Stevens could not confirm whether Traufield 

actually viewed each file, id. at 158-59, he could tell through VSS that sometime 

between July 29 and July 31, 2013, the material was deleted, and then, after July 31, 

the material was emptied from the computer’s recycling bin, because he was able to 

restore it from the computer’s unallocated space, id. at 100-01, 159-60. 

 Additionally, Stevens testified that he recovered some 100 pages of chat logs, 

which the district court admitted, between Traufield and other GigaTribe users. See 

id. at 79, 82-83. He recounted one in which Traufield identified himself by the 

screenname “nocosportsfan” to another user. Id. at 84-85. Traufield wrote, “Hello, 

how’s it going? I’m new, just getting started. Want to trade?” Id. at 85. The other 

user wrote back: “Sure,” and gave Traufield his password. Id. One minute later, 

Traufield replied, “So hot, wow, you popped my cherry[.]” Id. Traufield indicated 

he would give the other user access to his files, and he later gave him the password. 

The other user replied, “Mmmh, good stuff.” Id. at 88. Traufield then wrote that he 

was looking for a video depicting Colombian girls, whom he described as “super hot, 

best body on the net.” Id. The other user responded, “Try to get it, when I see–when 

I see, tell you.” Id. 

Stevens also testified that he personally viewed the material he recovered from 

Traufield’s computer and confirmed that it depicted prepubescent children under the 
5 

age of 12 engaging in child pornography. He stated, “There’s no question that there 

[were] children of a very young age. There’s photos of babies, . . . with diapers or 

onesies. And the onesies are unsnapped. The diapers are open. There’s definitely 

pictures of small kids.” Id. at 156. 

The district court heard the parties’ arguments, overruled Traufield’s 

objections, considered the § 3553(a) factors, and sentenced Traufield to 108 months 

in prison. The court also imposed a term of ten years of supervised release, subject 

to various special conditions. After Traufield appealed, his attorney moved to 

withdraw and filed an Anders brief, asserting there are no non-frivolous issues for 

appeal. As we have explained, Anders

authorizes counsel to request permission to withdraw where counsel 

conscientiously examines a case and determines that any appeal would 

be wholly frivolous. Under Anders, counsel must submit a brief to the 

client and the appellate court indicating any potential appealable issues 

based on the record. The client may then choose to submit arguments to 

the court. The Court must then conduct a full examination of the record 

to determine whether defendant’s claims are wholly frivolous. If the 

court concludes after such examination that the appeal is frivolous, it 

may grant counsel’s motion to withdraw and may dismiss the appeal. 

United States v. Kurtz, 819 F.3d 1230, 1233 (10th Cir. 2016) (internal quotation 

marks omitted). Counsel identified four potential appellate issues relating to 

sentence enhancements applied by the district court, although in counsel’s judgment, 

these are frivolous issues. The government agrees. For his part, Traufield filed a 

lengthy pro se response, reiterating some of the same arguments, challenging the 

substantive reasonableness of his sentence, and contesting several conditions of his 

supervised release. 
6 

II 

 “We review a sentence for reasonableness under an abuse-of-discretion 

standard.” United States v. Lente, 759 F.3d 1149, 1155 (10th Cir. 2014) (internal 

quotation marks omitted). “A sentence is procedurally unreasonable if the district 

court incorrectly calculates or fails to calculate the Guidelines sentence, treats the 

Guidelines as mandatory, fails to consider the § 3553(a) factors, relies on clearly 

erroneous facts, or inadequately explains the sentence.” Id. at 1156 (internal 

quotation marks omitted). A sentence may be substantively unreasonable if the 

district court places undue weight on certain § 3553(a) factors or fails to adequately 

justify its sentence in light of the § 3553(a) factors. See id. But “[a] sentence is 

substantively reasonable when it reflects the gravity of the crime and the § 3553(a) 

factors as applied to the case.” United States v. Geiner, 498 F.3d 1104, 1107 

(10th Cir. 2007) (internal quotation marks omitted). “[W]e accord a properly 

calculated Guidelines sentence a presumption of substantive reasonableness.” Id.

A. Procedural Reasonableness 

We begin with the four issues identified by counsel relating to the calculation 

of Traufield’s sentencing range. In evaluating these issues, we review the district 

court’s legal interpretation of the Guidelines de novo and its factual findings for clear 

error. See United States v. Dalton, 409 F.3d 1247, 1251 (10th Cir. 2005). The 

revised PSR determined the applicable base offense level was eighteen. See U.S. 

Sentencing Guidelines Manual (USSG) § 2G2.2(a)(1) (U.S. Sentencing Comm’n 
7 

2016).4

 It added a two-level enhancement under USSG § 2G2.2(b)(2) because 

material possessed by Traufield involved prepubescent minors who had not attained 

the age of twelve; a five-level enhancement under § 2G2.2(b)(3)(B) because he 

distributed child pornography in exchange for a thing of value, although not for 

pecuniary gain; another five-level enhancement under § 2G2.2(b)(7)(D) because he 

possessed more than 600 images; and a two-level enhancement under § 2G2.2(b)(6) 

because his offense involved use of a computer. After subtracting three levels for 

acceptance of responsibility, the revised PSR determined the total offense level was 

29. Coupled with a criminal history of III, the revised PSR yielded a sentencing 

range of 108 to 120 months, accounting for the ten-year statutory maximum sentence. 

See USSG § 5G1.1(c)(1). 

1. USSG § 2G2.2(b)(2)—Prepubescent Minor Under 12 Years 

Under the Guidelines, this two-level enhancement applies “[i]f the material 

involved a prepubescent minor or a minor who had not attained the age of 12 years.” 

USSG § 2G2.2(b)(2). The district court applied the enhancement after viewing a 

video identified as “Guatemalan 9-year-old Nena De La Calle,” which the court 

determined “obviously is within the category of prepubescent and/or under . . . 12 

years old.” R., Vol. 4 at 41. The government proffered other evidence as well, 

 4

 The district court relied on the 2016 version of the Sentencing Guidelines for 

the applicable enhancements. Although the revised PSR also referenced the 2013 

version, it determined the offense level calculation using the 2016 version, which 

yielded the same calculations, except for an additional four-level enhancement that it 

did not apply. 
8 

including Steven’s testimony that there were images involving babies and toddlers. 

Against this evidence, Traufield offers only his bare assertion that the video viewed 

by the district court was corrupt and the other material did not depict prepubescent 

children or minors under the age of twelve. Under these circumstances, the factual 

basis for applying this enhancement was satisfied. 

2. USSG § 2G2.2(b)(3)(B)—Exchange for Valuable Consideration 

This five-level enhancement applies “[i]f the defendant distributed [child 

pornography] in exchange for any valuable consideration, but not for pecuniary 

gain.” Id. § 2G2.2(b)(3)(B). According to the Application note, the phrase, 

“[t]he defendant distributed in exchange for any valuable consideration” 

means the defendant agreed to an exchange with another person under 

which the defendant knowingly distributed to that other person for the 

specific purpose of obtaining something of valuable consideration from 

that other person, such as other child pornographic material, preferential 

access to child pornographic material, or access to a child. 

Id. cmt. n.1. 

Traufield contends that using a file-sharing program like GigaTribe, by itself, 

is insufficient to establish that he distributed child pornography with the purpose of 

exchanging it for a “thing of value,” in this case more child pornography, see Geiner, 

498 F.3d at 1108 (recognizing that child pornography constitutes a “thing of value” 

under the Guidelines); id. at 1110-12 (holding that use of file-sharing program, 

without expectation of receiving a thing of value in return, is insufficient to apply the 

enhancement). He says the district court should have instead enhanced his sentence 
9 

only two levels under § 2G2.2(b)(3)(F), which applies if the material was not 

distributed to a minor or with the expectation of receiving something of value. 

“In advocating for imposition of [USSG] § 2G2.2(b)(3)(F)’s two-level 

enhancement, [Traufield] appropriately concedes his use of a peer-to-peer sharing 

network constituted ‘distribution’ of child pornography.” United States v. Barela, 

797 F.3d 1186, 1189 (10th Cir. 2015). In Barela, we vacated the defendant’s 

sentence, recognizing that the “act of sharing child pornography on a peer-to-peer 

network is insufficient to support the [§ 2G2.2(b)(3)(B)] enhancement.” Id. at 1191 

& n.2 (citing Geiner, 498 F.3d at 1110-12). Traufield likens his case to Barela, but 

the evidence here is quite different and establishes that he did more than use 

GigaTribe solely to distribute child pornography; it establishes that he did so with the 

express purpose of receiving more child pornography. He stipulated in his plea 

agreement that his GigaTribe chat logs indicated he was “repeatedly telling others he 

was starting his collection [of child pornography] over again and asking them to let 

him have images and videos to help build his collection.” R., Vol. 1 at 57-58. He 

also stipulated that he wrote, “I will be making good stuff available, won[’]t be a 

mooch for long[.]” Id. at 58 n.4 (internal quotation marks omitted). The chat logs 

described by Stevens also confirm that Traufield expressly asked, “Want to trade?” 

Id., Vol. 4 at 85. Indeed, he exchanged passwords with another GigaTribe user, they 

accessed each other’s files, they confirmed their access with their written responses, 

and Traufield asked the other user to look out for a specific video depicting 

Colombian girls. The evidence supports application of the five-level enhancement.
10 

3. USSG § 2G2.2(b)(7)(D)—More than 600 Images 

Traufield claims this five-level enhancement should not apply because, as 

stipulated in his plea agreement, he possessed only two videos, which are assessed a 

total value of 150 images. See id. § 2G2.2 cmt. n.6(B)(ii) (“Each video . . . shall be 

considered to have 75 images.”). Citing non-binding decisions from other circuits, 

he contends that files recovered from unallocated space should not be counted against 

him. This argument is frivolous, however, because the district court did not rely on 

any images recovered from unallocated space in finding that Traufield possessed 

more than 600 images. 

Traufield also asserts the court erred in relying on shadow copies under United 

States v. Dobbs, 629 F.3d 1199, 1201-02 (10th Cir. 2011), where files containing 

child pornography were automatically downloaded by the defendant’s web browser to 

his computer cache but “there was no evidence [the defendant] had accessed his 

computer’s cache, or that he even knew it existed.” Given the absence of evidence 

that the defendant received the images knowingly, a majority of the panel reversed 

his conviction for knowingly receiving child pornography. Id. at 1204. Here, 

however, the evidence does not indicate the files were automatically downloaded to 

Traufield’s computer. Rather, the evidence establishes that Traufield affirmatively 

reached out to other users of GigaTribe seeking child pornography. Stevens testified 

that he recovered some 100 pages of chat logs where Traufield asked other GigaTribe 

users to exchange and did exchange files containing child pornography. Stevens also 

testified that using VSS, he was able to access 715 images and at least 18 videos 
11 

depicting child pornography that existed on Traufield’s computer on July 29, 2013. 

Further, he told the court that the material had been deleted between July 29 and July 

31, and subsequently emptied from the computer’s recycle bin. And he emphasized 

that this material was not restored from unallocated space but was easily accessible 

through Windows Explorer. Unlike Dobbs, a reasonable jury could infer from this 

evidence that Traufield knowingly possessed the child pornography Stevens accessed 

on his computer. To the extent Traufield argues that Dobbs precludes the district 

court’s consideration of shadow copies, the case is inapposite.

4. USSG § 2G2.2(b)(6)—Use of a Computer 

This two-level enhancement applies “[i]f the offense involved the use of a 

computer or an interactive computer service for the possession, transmission, receipt, 

or distribution of [child pornographic] material, or for accessing with intent to view 

the material.” Id. § 2G2.2(b)(6). In his sentencing memorandum, Traufield agreed

this enhancement applies, but he urged the court not to consider it or to “greatly 

discount” it because he asserted it applies in virtually every child-pornography case. 

R., Vol. 1 at 154. On appeal, counsel contends we should review only for plain error 

because Traufield waived this issue by failing to advance it at sentencing. See, e.g., 

United States v. Wireman, 849 F.3d 956, 960-62 (10th Cir. 2017) (reviewing for plain 

error because although defendant raised issue in his sentencing memorandum, he 

failed to object at sentencing). Even if Traufield preserved the issue, however, it is 

meritless because we have previously rejected this argument. See United States v. 

Miller, 318 F. App’x 701, 702-03 (10th Cir. 2009) (unpublished) (concluding that 
12 

there was no improper double counting of criminal conduct because the defendant 

“could have been sentenced under § 2G2.2(a)(2) without having used a computer” 

and therefore “enhancing punishment for that specific and additional conduct is not 

prohibited”).5

 

B. Substantive Reasonableness 

Traufield also challenges the substantive reasonableness of his sentence. “In 

evaluating the substantive reasonableness of a sentence, we ask whether the length of 

the sentence is reasonable considering the statutory factors delineated in 18 U.S.C. 

§ 3553(a).” United States v. Hamilton, 510 F.3d 1209, 1217-18 (10th Cir. 2007). 

Here, consistent with its obligations under § 3553(a), the district court accounted for 

the nature and characteristics of the offense, noting this case was not at the high end 

of the spectrum of sex offenses, but it was still a “very serious offense.” R., Vol. 4 at 

212. The court also considered Traufield’s history and characteristics, recognizing 

he came from a “very nice family,” had “done public-service-type” activities, and 

was intelligent and articulate. Id. at 213-14. But the court recognized he had a 

criminal history, including two prior felonies, multiple convictions for assault and 

driving under the influence, and numerous prior incarcerations.6

 Also, the court 

 5

 We may consider non-precedential, unpublished decisions for their 

persuasive value. See Fed. R. App. P. 32.1; 10th Cir. R. 32.1(A). 

6

 Traufield makes a passing argument that the court erred in referencing a prior 

felony conviction for check fraud. Because he failed to object, we review only for 

plain error. We perceive none. Although the revised PSR confirms his guilty plea to 

check fraud was dismissed after a successful completion of a deferred judgment, see
13 

referenced the need for deterrence, the need to protect the public safety, and the need 

to avoid unwarranted sentencing disparities. The court then considered the 

applicable sentencing range, the types of sentences available, and the statutory 

maximum, and determined that a sentence of 108 months, at the low-end of the 

Guidelines range, was sufficient, but not greater than necessary, to achieve the 

sentencing objectives. We conclude the district court satisfied its statutory 

obligations and imposed a substantively reasonable sentence. 

C. Conditions of Supervised Release 

Finally, Traufield requests that we vacate several conditions of supervised 

release requiring that 1) he incur no new credit charges without probation’s approval, 

unless he is compliant with the periodic payments assessed by the court, 2) he 

participate in cognitive behavioral treatment (CBT) and 3) substance abuse treatment, 

4) he submit to polygraph and 5) visual response testing, 6) his computer use be 

restricted and 7) monitored, 8) he have no contact with minors, 9) he inform 

probation of all significant relationships, and 10) he register as a sex offender. He 

says these conditions are overbroad, unconstitutional, unrelated to his offense, 

unnecessarily harsh, and/or a greater deprivation to his liberty than necessary. 

Traufield’s failure to object at sentencing to any of these conditions means we 

review only for plain error. See Barela, 797 F.3d at 1192 (“[R]eversal is warranted 

under plain error test when error is clear and obvious under current law; affects 

 

R., Vol. 3 at 103, the district court referenced this offense only in commenting on 

Traufield’s characteristics and “dishonest behavior,” id., Vol. 4 at 214.
14 

substantial rights; and seriously affects the fairness, integrity or public reputation of 

judicial proceedings.”). “The district court is required to give reasons on the record 

for the imposition of special conditions of supervised release,” although “[t]he court 

need only provide a generalized statement of its reasoning.” United States v. Hahn, 

551 F.3d 977, 982 (10th Cir. 2008) (internal quotation marks omitted). We will 

vacate a special condition under plain error review only if the record reveals no basis 

for the condition. Barela, 797 F.3d at 1192. However, “[i]f the record reveals a 

basis, there is no reasonable probability that but for the error the defendant’s sentence 

would be different and thus the proceeding’s fairness is not impacted.” Id. 

 In imposing the special conditions of supervised release, the district court 

stated: “I’ve reviewed [the conditions of supervised release as recommended by 

probation], and they seem entirely appropriate, and I accept and adopt them.” R., 

Vol. 4 at 216. Although this was a brief statement, we need not decide whether it 

was adequate, because even if it was not, Traufield fails to address any of the other 

plain error prongs, and it is neither clear nor obvious that the court erred in imposing 

any of the foregoing special conditions. Indeed, our independent examination of the 

record indicates there is ample justification for the special conditions imposed. See 

Barela, 797 F.3d at 1193 (finding no plain error where record supported imposition 

of special conditions). Of course, the nature of the offense and the means by which 

Traufield committed it justify the CBT, polygraph, and visual response testing, as 

well as the restrictions on his computer use and monitoring. They also justify the 

restriction on his contact with minors, the requirement that he apprise probation of 
15 

his significant relationships, and his sex-offender registration. Further, Traufield’s 

history of substance abuse, which the district court observed includes four 

alcohol-related driving offenses, warrants the special condition that he obtain 

treatment for his problem. And the district court’s imposition of $12,000 in 

restitution justifies the special condition requiring probation’s approval for new 

credit accounts unless he was making his periodic payments, particularly because the 

revised PSR shows that he owes more than $21,000 in past child support payments. 

III 

 Neither the brief submitted by Traufield’s attorney, nor Traufield’s pro se 

response, suggests any non-frivolous basis for this appeal. Likewise, our 

independent examination of the record and the relevant legal authorities discloses no 

basis for reversing. Accordingly, we grant counsel’s motion to withdraw and dismiss 

this appeal. 

Entered for the Court 

Paul J. Kelly, Jr. 

Circuit Judge