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 sent ence of 108 months in prison and ten years of supervised release for possessi on of child pornography in viola tion of 18 U.S.C. § 2252A(a)(5)(B). Traufield di sputes the procedural and substa ntive reasonableness of his sentence and challenges several conditions of his superv ised release. His attorney has moved to withdraw a nd filed a brief pursuant to Anders v. California , 386 U.S. 738 (1967), stating th ere are no non-frivolous grounds to appeal. We agree,

* After examining the briefs and appellate record, this panel ha s determined unanimously that oral argument would not materially assist in t he determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is t herefore ordered submitted without oral ar gument. This order and judgme nt is not binding precedent, except under the doctr ines of law of the case, res j udicata, and collateral estoppel. It may be cited, howev er, for its persuasive value c onsistent with Fed. R. App. P. 32.1 a nd 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### April 9, 2019
Elisabeth A. Shumaker Clerk of Court2 and therefore, exercising juri sdiction under 28 U.S.C. § 1291, we grant counsel’s motion to withdraw and dismiss this appeal.
I A federal grand jury indicted T raufield on two counts of distr ibuting 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 g overnment’s dismissal of count s one and two. 1, 2 The initial presentence investig ation report (PSR) determined T raufield possessed 1,638 images and 43 videos of child pornography on his computer , yielding a sentencing range of 108 to 135 m onths in prison, with a 120-mon th statutory maximum sentence. Traufield obj ected, arguing, among other thi ngs, that images recovered from his computer’s “ unallocated space” and/or “shado w copies” should not be attributed to him as rel evant conduct for sentencing purposes. R., Vol. 1 at 79-82. He also argued in a sente ncing memo that the sentencing factors at 18 U.S.C. § 3553(a) warranted a below-Guide lines 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 th ose 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 confessio n which admits that the accused did various acts. It is an admission that he commi tted the crime charged against him.’” (quoting United States v. Broce , 488 U.S. 563, 570 (1989)).

2 As part of his plea agreement, T raufield executed an appeal wa iver, which the government previously moved t o enforce. We denied the gove rnment’s motion without prejudice, but the govern ment has not renewed its motio n; instead it agrees with counsel’s assessment that there are no non-frivolous issue s 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, an d recommended a sentence of 108 months followed by ten years of supervised rele ase. At sentencing, the district c ourt heard expert testimony from FBI forensic examiner James Stevens. Stevens explained that a file deleted from a computer will result in “unallocated” space an d can be restored with forensic software. R., Vol. 4 at 61, 101, 133. He distinguished this type of restored file f rom “shadow copies,” which are back-up files automati cally created by Windows operat ing 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 certa in dates and times simply by nav igating through Windows Explorer on the desktop if, for example, a user wants t o 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 dat es. See id. at 92-93. He selected July 29, 2013, which r estored three GigaTribe subfo lders containing 715 images and 18 videos 3 of child pornography. Id. at 93-94, 99-100. Stevens emphasized that this material was retrieved using VSS, it was n ot restored from the

3 Stevens later testified that he restored 25 videos depicting c hild pornography. See R., Vol. 4 at 154-55.4 computer’s unallocated space, a nd it “could be accessed on [Tra ufield’s] computer on that date by simply going down to . . . Windows Explorer, navig ating down to the folder, clicking, and the files w ould 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 t hrough VSS that sometime between July 29 and July 31, 2013 , the material was deleted, an d then, after July 31, the material was emptied from th e computer’s recycling bin, bec ause he was able to restore it from the com puter’s unallocated space, id. at 100-01, 159-60. Additionally, Stevens testified that he recovered some 100 pag es of chat logs, which the district court admitt ed, between Traufield and other GigaTribe users. See id. at 79, 82-83. He recounted one i n which Traufield identified himself by the screenname “nocosportsf an” to another user. Id. at 84-85. Traufield wrote, “Hello, how’s it going? I’m new, just ge tting started. Want to trade? ” Id. at 85. The other user wrote back: “Sure,” and ga ve 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 acce ss 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 depicti ng Colombian girls, whom he desc ribed as “super hot, best body on the net.” Id. The other user res ponded, “Try to get it, when I see–when I see, tell you.” Id. Stevens also testified that he p ersonally viewed the material h e recovered from Traufield’s computer and confir med that it depicted prepubescen t children under the5 age of 12 engaging in child por nography. He stated, “There’s n o question that there [were] children of a very young age. There’s photos of babies, . . . with diapers or onesies. And the onesies are uns napped. The diapers are open. There’s definitely pictures of small kids.” Id. at 156. The district court heard the pa rties’ arguments, overruled Trau field’s objections, considered the § 355 3(a) factors, and sentenced Tra ufield to 108 months in prison. The court also impos ed a term of ten years of super vised release, subject to various special conditions. A fter Traufield appealed, his a ttorney 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 p ermission to withdraw where coun sel conscientiously examines a case a nd determines that any appeal would be wholly frivolous. Under Anders , counsel must submit a brief to the client and the appellate court i ndicating any potential appeala ble issues based on the record. The client may then choose to submit argu ments to the court. The Court must then conduct a full examination of t he record to determine whether defendant ’s claims are wholly frivolous. If the court concludes after such exa mination that the appeal is frivo lous, it may grant counsel’s motion to w ithdraw and may dismiss the appe al.
United States v. Kurtz , 819 F.3d 1230, 1233 (10th Ci r. 2016) (internal quotation marks omitted). Counsel identifie d four potential appellate is sues relating to sentence enhancements applied by the district court, although i n counsel’s judgment, these are frivolous issues. The government agrees. For his pa rt, Traufield filed a lengthy pro se response, reiterating some of the same arguments , challenging the substantive reasonableness of h is sentence, and contesting seve ral conditions of his supervised release.6 II “We review a sent ence for reasonableness under an abuse-of-d iscretion standard.” United States v. Lente , 759 F.3d 1149, 1155 (10t h Cir. 2014) (internal quotation marks omitted). “A s entence is procedurally unreason able if the district court incorrectly calculates or f ails to calculate the Guidelin es sentence, treats the Guidelines as mandatory, fails to consider the § 3553(a) factor s, relies on clearly erroneous facts, or inadequate ly explains the sentence.” Id. at 1156 (internal quotation marks omitt ed). A sentence may be substantively unre asonable if the district court places undue wei ght on certain § 3553(a) factors or fails to adequately justify its sentence in lightof the § 3553(a) factors. See id. But “[a] sentence is substantively reasonabl e when it reflects the gravity of the cr ime and the § 3553(a) factors as applied to the case.” United States v. Geiner , 498 F.3d 1104, 1107 (10th Cir. 2007) (internal quot ation marks omitted). “[W]e acc ord a properly calculated Guidelines sentence a presumption of substantive rea sonableness.” Id.
A. Procedural Reasonableness We begin with the four issues i dentified by counsel relating to the calculation of Traufield’s sentencing range . In evaluating these issues, w e 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 appli cable base offens e level was ei ghteen. See U.S. Sentencing Guidelines Manual (U SSG) § 2G2.2(a)(1) (U.S. Sentenc ing Comm’n7 2016). 4 It added a two-level enhancemen t under USSG § 2G2.2(b)(2) bec ause material possessed by Traufiel d involved prepubescent minors wh o 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-l evel enhancement under § 2G2.2(b) (7)(D) because he possessed more than 600 images; a nd a two-level enhancement und er § 2G2.2(b)(6) because his offense in volved use of a com puter. After subtract ing three levels for acceptance of responsibility, the re vised PSR determined the to tal offense level was 29. Coupled with a criminal hist ory of III, the revised PSR yi elded a sentencing range of 108 to 120 months, accoun ting for the ten-year statuto ry maximum sentence.
See USSG § 5G1.1(c)(1).
1. USSG § 2G2.2(b)(2)—Prepubescent Minor Under 12 Years Under the Guidelines, this two-le vel enhancement applies “[i]f the material involved a prepubescent minor o r a minor who had not attained t he age of 12 years.” USSG § 2G2.2(b)(2). The district court app lied the enhancement after viewing a video identified as “Guatemalan 9 -year-old Nena De La Calle,” w hich the court determined “obviously is within the category of prepubescent an d/or under . . . 12 years old.” R., Vol. 4 at 41. T he government proffered other evidence as well,

4 The district court relied on th e 2016 version of the Sentencin g Guidelines for the applicable enhancements. A lthough the revised PSR also ref erenced the 2013 version, it determined the offens e level calculation using the 2016 version, which yielded the same calculations, e xcept for an additional four-le vel enhancement that it did not apply.8 including Steven’s testimony thatthere were images involving b abies and toddlers. Against this evidence, Traufield offers only his bare assertion that the video viewed by the district court was corruptand the other material did no t depict prepubescent children or minors under the ag e of twelve. Under these circum stances, the factual basis for applying this e nhancement was satisfied.
2. USSG § 2G2.2(b)(3)(B)—Exchange for Valuable Consideration This five-level enhancement app lies “[i]f the defendant distrib uted [child pornography] in excha nge for any valuable c onsideration, but no t for pecuniary gain.” Id. § 2G2.2(b)(3)(B). According to the Application note, the phra se, “[t]he defendant distributed in exchange for any valuable consi deration” means the defendant agreed to an exchange with another person u nder which the defendant knowingly dis tributed to that other person for the specific purpose of obtaining some thing of valuable considerati on from that other person, such as otherchild pornographic material, p referential access to child pornographic mate rial, or access to a child.
Id. cmt. n.1. Traufield contends that using a file-sharing program like GigaT ribe, by itself, is insufficient to establish that he distributed child pornogra phy with the purpose of exchanging it for a “thing of val ue,” in this cas e more child p ornography, see Geiner , 498 F.3d at 1108 (recognizing th at child pornography constitute s a “thing of value” under the Guidelines); id. at 1110-12 (holding that use o f file-sharing program, without expectation of receiving a thing of value in return, is insufficient to apply the enhancement). He says the distr ict court should have instead e nhanced his sentence9 only two levels under § 2G2.2(b)(3)(F), which applies if the ma terial was not distributed to a minor or with t he expectation of receiving som ething of value. “In advocating for imposition of [ USSG] § 2G2.2(b)(3)(F)’s two- level enhancement, [Traufield] appropr iately concedes his use of a pe er-to-peer sharing network constituted ‘distribu tion’ 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 “a ct of sharing child pornograph y on a peer-to-peer network is insufficient to suppor t the [§ 2G2.2(b)(3)(B)] enhan cement.” Id. at 1191 & n.2 (citing Geiner , 498 F.3d at 1110-12). Traufie ld likens his case to Barela , but the evidence here is quite different and es tablishes that he di d more than use GigaTribe solely to distribute child pornography; it establishe s that he did so with the express purpose of receiving mo re child pornography. He stipul ated in his plea agreement that his GigaTribe cha t logs indicated he was “repeat edly telling others he was starting his collection [of child pornography] over again a nd asking them to let him have images and vi deos to help build his collection.” R., Vol. 1 at 57-58. He also stipulated that he wrote, “I will be making good stuff ava ilable, won[’]t be a mooch for long[.]” Id. at 58 n.4 (internal quotation ma rks omitted). The chat logs described by Stevens also confir m that Traufield expressly aske d, “Want to trade?”
Id. , Vol. 4 at 85. Indeed, he excha nged passwords with another Gi gaTribe user, they accessed each othe r’s files, they confirme d their access with t heir written responses, and Traufield asked the other us er to look out for a specific v ideo depicting Colombian girls. The evidence su pports 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 b ecause, as stipulated in his plea agreemen t, 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 recovere d from unallocated space should not be counted against him. This argument is frivolous, however, because the districtcourt did not rely on any images recovered from unallo cated space in finding that Tra ufield possessed more than 600 images. Traufield also asserts the cour t erred in relying on shadow cop ies under United States v. Dobbs , 629 F.3d 1199, 1201-02 (10th Ci r. 2011), where files containi ng child pornography wer e automatically downloaded by the defendan t’s web browser to his computer cache but “there was no evidence [the defendant] h ad 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 indi cate the files were automati cally downloaded to Traufield’s computer. Rather, t he evidence establishes that Tr aufield affirmatively reached out to other users of G igaTribe seeking child pornograp hy. Stevens testified that he recovered some 100 pages of chat logs where Traufield a sked other GigaTribe users to exchange and did excha nge files containing child porno graphy. Stevens also testified that using VSS, he wa s able to access 715 images and at least 18 videos11 depicting child pornography that e xisted on Traufield’s compute r on July 29, 2013. Further, he told the court that the material had been deleted b etween July 29 and July 31, and subsequently emptied fro m the computer’s recycle bin. And he emphasized that this material was not res tored from unallocated space but was easily accessible through Windows Explorer. Unlike Dobbs , a reasonable jury c ould infer from this evidence that Traufield knowingly possessed the child pornograp hy Stevens accessed on his computer. To the exte nt 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 enhancem ent applies “[i]f th e offense involved t he use of a computer or an interactive comput er service for the possession, transmission, receipt, or distribution of [child porn ographic] materia l, or for access ing with intent to view the material.” Id. § 2G2.2(b)(6). In his senten cing memorandum, Traufield agreed this enhancement applies, but he urged the court not to conside r it or to “greatly discount” it because he asserted i t applies in virtually every child-pornography case. R., Vol. 1 at 154. On appeal, c ounsel contends we should revie w only for plain error because Traufield waived this i ssue by failing to advance it at sentencing. See, e.g., United States v. Wireman , 849 F.3d 956, 960-62 (10th Ci r. 2017) (reviewing for plain error because although defendant r aised issue in his sentencing memorandum, he failed to object at sentencing). E ven if Traufield preserved t he 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) (unpu blished) (conc luding that12 there was no improper double coun ting of criminal conduct becau se the defendant “could have been sentenced under § 2G2.2(a)(2) without having u sed a computer” and therefore “enhancing punishme nt for that specific and addit ional conduct is not prohibited”). 5
B. Substantive Reasonableness Traufield also challenges the s ubstantive reasonableness of his sentence. “In evaluating the substantive reasonableness of a sentence, we ask whether the length of the sentence is reasonable consid ering the statutory factors de lineated in 18 U.S.C. § 3553(a).” United States v. Hamilton , 510 F.3d 1209, 1217-18 (10th Cir. 2007). Here, consistent with its obligat ions under § 3553(a), the dist rict 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 serio us offense.” R., Vol. 4 at 212. The court also considered T raufield’s history and charact eristics, recognizing he came from a “very nice family ,” had “done public-service-typ e” activities, and was intelligent and articulate. Id. at 213-14. But the court recognized he had a criminal history, including two prior felonies, multiple convic tions for assault and driving under the influence, and numerous prior incarcerations. 6 Also, the court

5 We may consider non-precedentia l, unpublished decisions for th eir persuasive value. See Fed. R. App. P. 32.1; 10th Cir. R. 32.1(A).

6 Traufield makes a passing argum ent that the court erred in ref erencing a prior felony conviction for check fra ud. Because he failed to object , we review only for plain error. We perceive none . Although the revised PSR confi rms his guilty plea to check fraud was dismissed after asuccessful completion of a de ferred judgment, see13 referenced the need for deterre nce, the need to protect the pub lic safety, and the need to avoid unwarranted sentencing disparities. The court then co nsidered the applicable sentencing range, the types of sentences available, and the statutory maximum, and determined that a sentence of 108 months, at the l ow-end of the Guidelines range, was sufficient , but not greater than necessary, to achieve the sentencing objectives. We conclude the district court satisfie d its statutory obligations and imposed a substa ntively reasonable sentence. C. Conditions of Supervised Release Finally, Traufield requests that we vacate several conditions o f supervised release requiring that 1) he inc ur no new credit charges withou t probation’s approval, unless he is compliant with the p eriodic payments assessed by t he court, 2) he participate in cognitive behavior al treatment (CBT) and 3) subs tance abuse treatment, 4) he submit to polygraph and 5) visual response testing, 6) hi s computer use be restricted and 7) monitored, 8) he have no contact with minors, 9) he inform probation of all significant rela tionships, and 10) he registeras a sex offender. He says these conditions are overbro ad, unconstitutional, unrelate d to his offense, unnecessarily harsh, and/or a gr eater deprivation to his libert y than necessary. Traufield’s failure to object a t sentencing to any of these con ditions means we review only for plain error. See Barela , 797 F.3d at 1192 (“[R]eversal is warranted under plain error test when e rror is clear and obvious under cu rrent law; affects

R., Vol. 3 at 103, the district c ourt referenced this offense o nly in commenting on Traufield’s characteristic s and “dishonest behavior,” id. , Vol. 4 at 214.14 substantial rights; and seriously affects the fairness, integri ty or public reputation of judicial proceedings.”). “The dis trict court is required to gi ve reasons on the record for the imposition of special c onditions 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 om itted). We will vacate a special condition under pl ain 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 erro r the defendant’s sentence would be different and thus the proceeding’s fairness is not im pacted.” Id. In imposing the special conditi ons of supervised release, th e district court stated: “I’ve reviewed [the c onditions of supervised release a s recommended by probation], and they seem entirel y appropriate, and I accept an d adopt them.” R., Vol. 4 at 216. Although this was a brief statement, we need no t decide whether it was adequate, because even if i t was not, Traufield fails to ad dress any of the other plain error prongs, and it is nei ther clear nor obvious that th e court erred in imposing any of the foregoing special c onditions. Indeed, our independe nt examination of the record indicates there is ample justification for the special c onditions imposed. See Barela , 797 F.3d at 1193 (finding no plai n error where record support ed imposition of special conditions). Of course , the nature of the offense a nd the means by which Traufield committed it justify t he CBT, polygraph, and visual r esponse testing, as well as the restrictions on his computer use and monitoring. T hey also justify the restriction on his contact with minors, the requirement that he apprise probation of15 his significant relationships, a nd his sex-offender registratio n. Further, Traufield’s history of substance abuse, which the district court observed i ncludes four alcohol-related driving offens es, warrants the special conditio n 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 mak ing his periodic payments, par ticularly because the revised PSR shows that he owes mor e than $21,000 i n past child support payments.
III Neither the brief submitted by Traufield’s attorney, nor Trauf ield’s pro se response, suggests a ny non-frivolous basis for this appeal. Li kewise, our independent examination of the r ecord and the relevant legal au thorities discloses no basis for reversing. Accordingl y, we grant counsel’s motion to withdraw and dismiss this appeal.

Entered for the Court
Paul J. Kelly, Jr. Circuit Judge