NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

_______________ No. 14-2008

_______________ UNITED STATES OF AMERICA

v. STEPHEN PUZA, III, Appellant

_______________ On Appeal from the United States District Court for the Middle District of Pennsylvania (3-13-cr-00192-001) District Judge: Honorable Edwin M. Kosik

_______________ Submitted Pursuant to Thir d Circuit L.A.R. 34.1(a) January 13, 2015 Before: AMBRO, FUENTES, and ROTH, Circuit Judges (Filed: February 12, 2015)

_______________ OPINION 

 This disposition is not an opinion of the full Court and pur suant to I.O.P. 5.7 does not constitute binding precedent.2 FUENTES, Circuit Judge : Stephen Puza created a secret folder linked to a file-sharing service on his girlfriend’s computer. The folder containe d a trove of child pornography. When his girlfriend discovered it, she reported Puza to police. Puza was ther eafter charged in the Middle District of Pennsylvani a on a single count indictment that he “did knowingly and willfully receive and distribute [child pornography] in viola tion of 28 U.S.C. § 2252(a)(2).” The District Court accepted Pu za’s guilty plea on October 29, 2013 after a full Rule 11 colloquy. The District Court se ntenced Puza to 188 months in prison, the bottom of a calculated Guidelines range that included the § 2G2.2(b)(3) enhancement for possession of child pornography with intent to distribute. 1 On appeal, Puza argues that an in tervening decision of our court, United States v.
Husmann , 765 F.3d 169 (3d Cir. 2014), make s clear that he pled guilty to a crime he did not commit. 2 Section 2252(a)(2) makes it illegal to “ knowingly receive[], or distribute[], any visual depiction us ing any means or facility of inte rstate commerce . . . if (i) the producing of such visual de piction involves the use of a minor engaging in sexually explicit conduct, and (ii) such visual depiction is of such conduct.” In Husmann we held that “the term ‘distribute’ in § 2252(a) . . . requires evidence that a defendant's child

1 Puza does not challenge the application of the Sentencing Guidelines § 2G2.2(b)(3) enhancement for possession of child por nography with intent to distribute.
2 Puza originally asserted th is argument in a pro se letter filed with the court on September 10, 2014. On August 4, 2014, his counsel submitted an Anders brief seeking to cease representation in a me ritless appeal. Our decision in Husmann was filed on September 4, 2014. Counsel withdrew the Anders petition after we asked for3 pornography materials were completely transf erred to or downloade d by another person.”
Husmann , 765 F.3d at 176. Husmann had placed ch ild pornography materials in a shared folder accessible to others, but the government lacked evidence that third parties actually downloaded the materials he made ava ilable. Finding no basis for a finding of “distribution,” we vacated Husmann’s c onviction under § 2252(a)(2), which was based on his alleged “distribution” onl y. According to Puza, he never activated the function on his computer permitting his child pornography to be shared w ith third parties, and so never even made his materials available. Citing Husmann , he contends it is not possible that he “distribute[d]” his child pornogra phy within the meaning of § 2252(a)(2), and thus the District Court should not have accepted his plea. To Puza’s point, when the government de scribed its evidence against him at the guilty plea hearing, it did not describe any ev idence that would have allowed a factfinder to conclude that Puza’s images were transf erred to or downloaded by one or more third parties. This does not, however, entitle Puza to relief. Puza, unlike Husmann, was also charged with violating § 2252(a)(2) base d on receiving child pornography. As the statutory text and our precedent make clear, receipt is sufficient for a conviction under § 2252(a)(2). See United States v. Finley , 726 F.3d 483, 496 (3d Cir. 2013) cert. denied , 135 S. Ct. 259 (2014) (“Secti on 2252(a)(2) does not create distinct offenses for ‘receiv[ing]’ and ‘distribut [ing] child pornography.”). See also Husmann , 765 F.3d at 176 (“In the end, our interpretation of “dis tribute” in § 2252(a)(2) might affect the

supplemental briefings on the import of Husmann

.4 government's charging decisions, but it does not handicap the government's ability to prosecute child pornography offe nses.”). Puza pled guilty and admitted to the conduct of receipt in his plea agreement and at his plea colloquy, and does not dispute now that he received child pornography. Irrespective of whether Puza violated § 2252(a)(2) by distributing child pornography, there is no question that he vi olated § 2252(a)(2) by receiving child pornography. The District Court had adequa te factual basis to accept Puza’s plea to a violation of §2252(a)(2). See United States v. Lessner , 498 F.3d 185, 197 (3d Cir. 2007) (to comport with Rule 11 requirement that there is a factual basis of the plea, the District Court must “find sufficient evid ence in the record as a whol e to justify a conclusion of guilt”). We will therefore affirm.