United States v. Gustavo Cervantes-Perez , 592 F. App'x 316 ( 2015 )

Case: 14-50154 Document: 00512927808 Page: 1 Date Filed: 02/05/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 14-50154
Fifth Circuit
FILED
Summary Calendar February 5, 2015
Lyle W. Cayce
UNITED STATES OF AMERICA, Clerk
Plaintiff-Appellee
v.
GUSTAVO CERVANTES-PEREZ,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:12-CR-217
Before DAVIS, CLEMENT, and COSTA, Circuit Judges.
PER CURIAM: *
A jury found Gustavo Cervantes-Perez guilty of two counts of
receipt/distribution of material involving the sexual exploitation of children
and two counts of possessing material involving the sexual exploitation of
children. On each count, he was sentenced to concurrent terms of 120 months
of imprisonment and five years of supervised release.
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
Case: 14-50154 Document: 00512927808 Page: 2 Date Filed: 02/05/2015
No. 14-50154
On appeal, he argues that the evidence produced at trial was insufficient
to support his conviction for distribution of child pornography under 18 U.S.C.
§ 2252(a)(2). Because he did not renew his motion for a judgment of acquittal
at the close of all evidence, we review this claim for a manifest miscarriage of
justice. United States v. Salazar, 542 F.3d 139, 142 (5th Cir. 2008). As there
was evidence produced at trial showing that child pornography was detected
in a shared folder accessible via a peer-to-peer network at Cervantes-Perez’s
residence, as well as substantial evidence linking Cervantes-Perez to the
detected child pornography files, Cervantes-Perez has failed to show there was
a manifest miscarriage of justice. See United States v. Richardson, 713 F.3d
232, 235-36 (5th Cir.), cert. denied, 134 S. Ct. 230 (2013).
Cervantes-Perez also contends that the district court erred by applying
the two-level adjustment under U.S.S.G. § 2G2.2(b)(3)(F) because his offense
involved distribution. He asserts that this constituted error because there was
no evidence that he used a shared folder accessible via a peer-to-peer network.
As there was such evidence, he has failed to show error in this regard. See
United States v. Baker, 742 F.3d 618, 620 (5th Cir. 2014).
The judgment of the district court is AFFIRMED.
2