PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 12-4901

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

WILLIAM DEVON MCMANUS,

Defendant - Appellant.

Appeal from the United States District Court for the Middle

District of North Carolina, at Greensboro. Catherine C. 

Eagles, District Judge. (1:12-cr-00174-CCE-1)

Argued: September 20, 2013 Decided: October 30, 2013

Before GREGORY and DUNCAN, Circuit Judges, and Samuel G. 

WILSON, United States District Judge for the Western 

District of Virginia, sitting by designation.

Vacated and remanded for resentencing by published opinion. 

Judge Duncan wrote the opinion, in which Judge Gregory and 

Judge Wilson joined.

ARGUED: Eugene Ernest Lester, III, SHARPLESS & STAVOLA, 

PA, Greensboro, North Carolina, for Appellant. Anand P. 

Ramaswamy, OFFICE OF THE UNITED STATES ATTORNEY, 

Greensboro, North Carolina, for Appellee. ON BRIEF: 

Ripley Rand, United States Attorney, OFFICE OF THE UNITED 

STATES ATTORNEY, Greensboro, North Carolina, for Appellee.
2

DUNCAN, Circuit Judge:

William Devon McManus pleaded guilty to one count of 

Possession of Child Pornography in violation of 18 U.S.C. §

2252A(a)(5)(B) and (b)(2). He was sentenced to 72 months’ 

imprisonment and a subsequent 10 years’ supervised release. 

McManus appeals his sentence on the ground that the 

district court improperly calculated the applicable 

Sentencing Guideline range. For the reasons that follow, 

we vacate and remand for resentencing.

I.

McManus used a file-sharing computer program known as 

Gigatribe to acquire and maintain images and videos of 

child pornography. Gigatribe allows users to share files 

with other users with whom they have become “friends” 

through an invitation and acceptance feature of the 

program. A user is not able to see or access another

user’s files unless: 1) one user has invited the other and 

the other has accepted the invitation; and 2) the other

user maintains a shared folder, accessible to friends, that 

is populated with files.

McManus created a shared folder and populated it with 

the files of child pornography he possessed. An FBI agent 

downloaded some of these files from McManus’s Gigatribe 
3

account, leading to McManus’s arrest and indictment. There 

is no evidence in the record to indicate how the FBI agent 

gained access to McManus’s restricted shared folder. The 

FBI agent gave McManus nothing in exchange for the files he 

downloaded and there is no evidence that any other 

individual downloaded pornographic files from McManus.

At the sentencing hearing following McManus’s guilty 

plea, the district court applied a five-level enhancement 

under United States Sentencing Guideline § 2G2.2(b)(3)(B) 

to McManus’s base possession offense level. This

enhancement applies when a defendant has “distributed” 

child pornography “for the receipt, or expectation of 

receipt, of a thing of value, but not for pecuniary gain.” 

Applying this enhancement, the district court concluded 

that McManus’s offense level was 33 and his criminal 

history category was I.1

 The district court calculated a 

sentencing range of 135 to 168 months which it reduced to a 

range of 120 to 120 months to comply with the statutory 

maximum.2 The district court applied a downward variance 

based primarily on the relative seriousness of McManus’s

 1 McManus does not challenge any of the district 

court’s other non-distribution enhancements under § 2G2.2.

2 See 18 U.S.C. § 2252A(b)(2).
4

offense, resulting in a sentence of 72 months’ 

imprisonment.3

II.

On appeal, McManus contends that his sentence is 

procedurally unreasonable because the district court 

improperly calculated his Guideline range under U.S.S.G. § 

2G2.2(b). He argues that the district court erred by 

applying the five-level enhancement under § 2G2.2(b)(3)(B) 

instead of the two-level enhancement for simple 

distribution under § 2G2.2(b)(3)(F).

We review criminal sentences for reasonableness using 

an abuse of discretion standard. Gall v. United States, 

552 U.S. 38, 51 (2007). We review the district court’s 

factual findings for clear error and its legal conclusions 

de novo. United States v. Strieper, 666 F.3d 288, 292 (4th 

Cir. 2012). The review proceeds in two parts. We first 

determine whether the district court committed any 

significant procedural error. Id. If the sentence is 

procedurally sound, we review its substantive 

reasonableness to determine whether in the totality of the 

 3 McManus does not challenge the district court’s 

imposition of a ten-year period of supervised release. A 

term of supervised release from one year up to life is 

permissible for sex offenses. U.S.S.G. § 5D1.2(b).
5

circumstances the district court abused its discretion by 

concluding that the sentence satisfies the standards set 

out in 18 U.S.C. § 3553(a). Gall, 552 U.S. at 51.

Interpretation of the Sentencing Guidelines is a 

question of law that we review de novo. United States v. 

Price, 711 F.3d 455, 458 (4th Cir. 2013). “Although the 

sentencing guidelines are only advisory, improper 

calculation of a guideline range constitutes significant 

procedural error, making the sentence procedurally 

unreasonable and subject to being vacated.” Hargrove, 701 

F.3d 156, 161 (4th Cir. 2012). However, sentencing error 

is subject to harmlessness review. Sentencing “error is 

harmless if the resulting sentence [is] not ‘longer than 

that to which [the defendant] would otherwise be subject.’” 

United States v. Mehta, 594 F.3d 277, 283 (4th Cir. 2010) 

(quoting United States v. Stokes, 261 F.3d 496, 499 (4th 

Cir. 2001)).

III.

The proper manner of applying the five-level 

§2G2.2(b)(3)(B) enhancement to a defendant’s use of a filesharing program to distribute child pornography is a 

question of first impression in this Circuit. Strieper, 

666 F.3d at 295 (finding that we have not yet answered this 
6

question and declining to do so based on the procedural 

posture of the case). The central issues before us are the 

meaning of the phrase “[d]istribution for the ...

expectation of receipt[] of a thing of value,” and what 

evidence constitutes sufficient proof that a defendant had 

such an expectation. U.S.S.G. § 2G2.2(b)(3)(B). Although 

a number of other circuits have interpreted this phrase, we 

have not, and it is incumbent upon us to do so “according 

to the ordinary rules of statutory construction.” 

Strieper, 666 F.3d at 293-94.

A.

When interpreting the Sentencing Guidelines, “[a]s in 

all cases of statutory interpretation, our inquiry begins 

with the text of the statute.” United States v. Ashford, 

718 F.3d 377, 382 (4th Cir. 2013) (quoting Chesapeake Ranch 

Water Co. v. Bd. of Comm’rs of Calvert Cnty., 401 F.3d 274, 

279 (4th Cir. 2005)). “We determine the plainness or 

ambiguity of the statutory language ... by reference to the 

language itself, the specific context in which that 

language is used, and the broader context of the statute as 

a whole.” United States ex rel. Carter v. Halliburton Co., 

710 F.3d 171, 189 (4th Cir. 2013) (internal quotation marks 

and citations omitted). “[W]here the statutory language is 

ambiguous we turn to other evidence to interpret the 
7

meaning of the provision ... including the Sentencing 

Guidelines commentary.” Ashford, 718 F.3d at 382

(alteration in original) (internal quotation marks and 

citations omitted).

Section 2G2.2 states, in relevant part, that:

If the offense involved:

(A) Distribution for pecuniary gain, increase by 

the number of levels from the table in § 2B1.1 

(Theft, Property Destruction, and Fraud) 

corresponding to the retail value of the material, 

but by not less than 5 levels.

(B) Distribution for the receipt, or expectation 

of receipt, of a thing of value, but not for 

pecuniary gain, increase by 5 levels.

(C) Distribution to a minor, increase by 5 levels.

(D) Distribution to a minor that was intended to 

persuade, induce, entice, or coerce the minor to 

engage in any illegal activity, other than illegal 

activity covered under subdivision (E), increase 

by 6 levels.

(E) Distribution to a minor that was intended to 

persuade, induce, entice, coerce, or facilitate 

the travel of, the minor to engage in prohibited 

sexual conduct, increase by 7 levels.

(F) Distribution other than distribution described 

in subdivisions (A) through (E), increase by 2 

levels.

U.S.S.G. § 2G2.2(b)(3).

In the context of the entirety of § 2G2.2 and our 

precedent interpreting its elements, the meaning of the 

phrase at issue is unambiguous. It is clear from the text 

of the Guidelines that § 2G2.2(b)(3)(F) is a residual 

enhancement and that application of §§ 2G2.2(b)(3)(A) - (E) 

require proof beyond that necessary to trigger § (F). In 
8

United States v. Layton, we held that the elements of § (F) 

are satisfied when a defendant knowingly permits others to 

access and retrieve child pornography files in the 

defendant’s possession, even if he does so passively. 564 

F.3d 330, 335 (4th Cir. 2009). A plain reading of the text 

also indicates the type of additional proof that is 

required to trigger § (B). If the Government proves

distribution, it must then prove that the defendant

distributed pornography with the specific purpose of 

securing some kind of benefit in exchange. The Government 

must show that the defendant conditioned his decision to 

distribute his files on his belief that he would receive 

something of value in return. The requisite proof of 

intent is the same whether the exchange is realized 

(“receipt”) or not (“expectation of receipt”). To the 

extent that there is any dispute about the meaning of “a 

thing of value, but not ... pecuniary gain,” that term is 

defined in the application notes, and includes the exchange 

of child pornographic materials. U.S.S.G. § 2G2.2, cmt. 1. 

There is no indication in the text of the statute that 

“expectation” should be given anything other than its 

commonly understood meaning. See United States v. Powell, 

680 F.3d 350, 355 (4th Cir. 2012). However, it is 

important to note that an expectation is more than a mere 
9

hope. A thing that is expected is reasonably likely to 

occur, while a thing that is hoped for is at best merely 

possible.

The burden is on the Government to prove the facts 

needed to support a sentencing enhancement by a 

preponderance of the evidence. United States v. Grubbs, 

585 F.3d 793, 799-803 (4th Cir. 2009). In light of the 

above, to trigger the § 2G2.2(b)(3)(B) five-level 

enhancement, the Government must show that the defendant: 

1) knowingly made child pornography in his possession 

available to others by some means, and 2) made his 

pornographic materials available for the specific purpose 

of obtaining something of valuable consideration, such as

more pornography, whether or not he actually succeeded in 

obtaining the desired thing of value.

IV.

In this case, the parties agree that McManus’s acts 

are sufficient to satisfy at least the first element of 

proof and to trigger the residual distribution enhancement 

under Layton. The Government argues that McManus’s use of 

Gigatribe to distribute child pornography “constitutes acts 

greater than those seen in Layton,” and that proof of those 

acts is sufficient to satisfy the additional burden of 
10

proof for the five-level enhancement. Appellee’s Br. 10. 

It contends that: 1) the invitation and acceptance feature 

of Gigatribe renders any use of the program for 

distribution inherently reciprocal, and 2) McManus 

intentionally used Gigatribe to create a shared folder 

containing pornographic material with the knowledge that 

other users could access and download those files.4

 We 

address, and reject, these arguments in turn.

A.

The Government first argues that “[t]here is an 

inherent reciprocity in the invitation and acceptance 

process necessary to gain mutual access to users’ files 

which exceeds the distribution seen in Layton, and supports 

U.S.S.G. 2G2.2(b)(3)(B)’s ‘expectation of receipt’ and 

resulting five-level increase.” Appellee’s Br. 10. This 

argument relies primarily on the distinction between open 

file-sharing programs, like the one used in Layton, and 

closed file-sharing programs, like Gigatribe. In an open 

 4 The Government makes a third argument that the file 

selection feature of Gigatribe renders its use an act 

materially greater than use of the program in Layton. It 

contends that users of Gigatribe are more likely than users 

of other programs to know the content of the files they are 

downloading because they are able to visually preview and 

individually select files to download. Because McManus 

does not contend that he was not in possession of child 

pornography or that he downloaded such files 

unintentionally, this feature of Gigatribe is irrelevant to 

our analysis.
11

program, if a user chooses to create a shared folder, its 

contents are available to all other users. In Gigatribe, 

if a user chooses to create a shared folder, its contents 

are available only to those other users with whom he has 

become “friends,” either by inviting them or by accepting 

invitations from them.

Although the Government does not elaborate on its 

proposition, it seems to be arguing that no Gigatribe user 

would become friends with another user unless he believed 

that the other user would allow access to his files. The 

district court relied on this implied reasoning to conclude 

that the five-level enhancement was warranted because 

“you’re inviting people in and you’re sharing so that they 

will let you see their stuff, you show them your stuff.” 

J.A. 52-53. Affirming the district court’s reliance on the 

Government’s inherent reciprocity argument would establish

a per se rule applying the five-level enhancement to every

Gigatribe distribution offense absent any evidence of the 

particular defendant’s state of mind.5 We decline to adopt 

the Government’s proposed rule.

 5 At oral argument the Government contended that its 

position would not result in a per se application of the 

five-level enhancement. However, it was unable to explain 

how its proposed rule could be individualized.
12

i.

Because § 2G2.2(b)(3)(B) requires proof of an 

individual defendant’s mental state to trigger the fivelevel enhancement, a per se rule is inappropriate. Beyond 

its attempt to evade § (B)’s requirement of individualized 

proof, the Government’s proposed per se rule is simply 

unsupported by the facts.

Although we have not addressed this question, both the 

Tenth and Eleventh Circuits have recognized the fallacy of 

inherent-reciprocity reasoning in cases involving open 

file-sharing programs. In United States v. Geiner, the 

Tenth Circuit held that because file-sharing programs 

generally allow users to retrieve files without sharing any 

files of their own, a defendant who distributes child 

pornography using a file-sharing network “does not 

necessarily do so in exchange for similar files, 

particularly when the defendant understands that these 

files are available even if he chooses not to share his 

own.” 498 F.3d 1104, 1111 (10th Cir. 2007). Geiner

emphasized the Guideline’s requirement that distribution be 

“for the receipt or expectation of receipt,” and concluded 

that expectation must be an individualized factual 

determination. Id.
13

In United States v. Spriggs, the Eleventh Circuit held 

that a user’s mere “hope that a peer would reciprocate his 

generosity” was insufficient to show distribution with an 

expectation of receipt “[w]ithout evidence that [that user] 

and another user conditioned their decisions to share their 

illicit image collections on a return promise to share 

files.” 666 F.3d 1284, 1288 (11th Cir. 2012). In United 

States v. Vadnais, the Eleventh Circuit held that “logic 

compels the conclusion that more [than use] must be 

required for the five-level enhancement,” because it 

“require[s] that the distribution occur for a specified 

purpose.” 667 F.3d 1206, 1209 (11th Cir. 2012). Vadnais

held that inferring an expectation of receipt from mere use 

is unsupported by the operation of an open file-sharing 

program because “freeloading” is possible. Id. As Geiner

recognized, knowing use of a sharing feature proves only an 

intent to distribute because a user does “not need to share 

child pornography to get pornography.” Vadnais, 667 F.3d 

at 1210. A knowledgeable file-share user “ha[s] no 

expectation of receiving any more child pornography merely 

by sharing his files” because he understands that he does 

not need to make his files available to gain access to 

those of other users. Id.
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ii.

Contrary to the Government’s contention, Gigatribe’s 

invitation and acceptance feature does not alter this

analysis. A per se application of the five-level 

enhancement might be appropriate, for example, in a case 

where a defendant used a website which permitted users to 

download a file of child pornography only if they first 

submitted a file of child pornography that would be 

redistributed through the same mechanism to other users. 

In such a program, use of the website would necessarily 

satisfy all of the requirements of § (B) because users 

would knowingly distribute pornography, necessarily intend 

to receive pornography in return, and reasonably expect to 

receive pornography in exchange for their pornography 

because that would be the only purpose of the system. This 

fictitious system is inherently reciprocal in a way that 

would allow per se application of the Guideline 

enhancement. The same cannot be said for Gigatribe.

The undisputed facts found by the district court show 

that within the Gigatribe system: 1) the existence and 

content of a user’s files are unknown to other users absent 

direct communication, and 2) a user does not necessarily 

have access to another user’s files merely because they are 
15

Gigatribe “friends.” The Government’s own evidence shows

that:

A user can prevent anyone from seeing what they 

share with other users and can choose to share 

everything with all users or just with specific 

users .... [I]nformation including thumbnails of 

the pictures and/or videos on the ... users [sic] 

system are ... only sent if the user on the other 

end has physically either invited the user or 

accepted to invite of the use [sic]. Users make 

several active decisions that contribute to the 

distribution of the files. First, they make an 

active decision to download and setup a file 

sharing program. Second, they actively set up a 

shared folder and make a choice on the folder and 

contents that they share. Third, they make an 

active decision to open and allow access to other 

users they ‘friend’ to see what they have .... A 

user can scroll through the available files that 

another user has allowed them to see.

Appellee’s Br. 3-4.

It is apparent that Gigatribe users can freeload in 

the same manner as users of open file-sharing programs. A 

Gigatribe user can maintain an account and invite and 

accept friends without sharing files. A user can also make 

files available only to selected friends and can password 

protect certain files within folders that are otherwise 

accessible to friends. Moreover, a user’s files are not 

visible to any other user who is not that user’s friend, 

and no user has any reason to assume that any other user 

possesses shared files which he would consider valuable 

because Gigatribe can host any type of music, picture, or 
16

video file. Based on these features, we must conclude that 

a user who understands the basic operation of the Gigatribe 

program can have no reasonable expectation of gaining

access to pornographic files or any other thing of value 

solely because he creates a shared folder populated with 

files containing child pornography.

Although it is perhaps more likely that a Gigatribe 

user, as compared to the user of an open system, would only 

become friends with, and therefore distribute files to,

other users who he believed possessed pornographic files 

and were willing to exchange them, the Government has 

presented no evidence to support this supposition. It 

submitted no evidence that McManus distributed his files to 

any user as a barter or trade, that Gigatribe enforces a 

rule that friends must make files available to each other, 

or that a strong custom has arisen within the Gigatribe 

community to that same effect. The Government submitted no 

evidence that McManus screened possible friends based on 

their likelihood of possessing valuable files before 

inviting them or accepting their invitations. Because the 

contents and even the existence of a Gigatribe user’s 

shared files are unknown, the only way a user could 

accomplish such screening would be by communicating 

directly with other users. If users do in fact communicate 
17

in this manner, then the Government should be able to 

gather actual individualized evidence to satisfy the second 

element of § (B) by seizing defendants’ chat logs with 

undercover agents and other users.

The Government’s argument is purely speculative, and 

all but the most superficial investigation demonstrates 

that the speculation is unreasonable. Even the way in 

which the FBI agent acquired the proof for McManus’s

underlying conviction in this case undercuts the 

Government’s inherent-reciprocity claim. The agent was 

able to download pornography from McManus without supplying 

any like files in return, and there is no evidence that the 

agent represented to McManus that he had files and was 

willing to trade. Whether or not Gigatribe users routinely 

distribute child pornography gratuitously, it is clearly 

possible based on the features of the system that a 

Gigatribe user could distribute his files without any

reasonable expectation of receiving anything of value in 

exchange. Therefore, the proposed per se rule is 

inappropriate.

B.

Because we decline to apply the Government’s proposed 

per se rule, we must vacate McManus’s sentence unless the 

Government submitted sufficient individualized evidence of 
18

McManus’s intent to distribute his pornographic materials 

in expectation of receipt of a thing of value. The only 

individualized evidence that the Government offers is that

McManus “knew of the file-sharing features of Gigatribe,” 

when he used the program to acquire and maintain child 

pornography files and that “he was aware that files 

utilized in Gigatribe could be shared with other Gigatribe 

users.” Appellee’s Br. 10. This evidence proves only the 

first element of § (B) and is only sufficient to trigger § 

(F), an enhancement that McManus concedes is appropriate.

The Government failed to carry its burden. The 

district court improperly applied the five-level 

enhancement, resulting in improper calculation of McManus’s

sentencing range. The district court’s reliance on an 

improperly calculated sentencing range constitutes

significant procedural error and McManus’s sentence is 

subject to vacation unless the error was harmless.

V.

McManus’s properly calculated offense level of 30

would have generated a Guideline range of 97 to 120 months’ 

imprisonment. Although the district court’s 72-month 

sentence is well below the bottom of this corrected range, 

we cannot say with certainty that the district court would 
19

not have sentenced McManus to even less time in custody if 

it had used the proper starting point. See Mehta, 594 F.3d 

at 284. Therefore, we cannot say that the error was 

harmless and remand for resentencing is necessary. Because 

we vacate McManus’s sentence and remand on the ground that 

it is prejudicially procedurally unreasonable, we need not 

address its substantive reasonableness.

VI.

For the foregoing reasons, the district court’s sentence is

VACATED AND REMANDED FOR RESENTENCING.