United States v. George Roman, III , 393 F. App'x 149 ( 2010 )

Case: 09-30841 Document: 00511212475 Page: 1 Date Filed: 08/24/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 24, 2010
No. 09-30841
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
GEORGE L. ROMAN, III,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 2:08-CR-227-1
Before DeMOSS, STEWART, and ELROD, Circuit Judges.
PER CURIAM:*
George L. Roman, III, appeals the 210-month sentence he received for
knowingly and intentionally distributing child pornography, in violation of
18 U.S.C. § 2252A(a)(2)(A). He asserts that the district court erroneously
imposed a five-level enhancement under U.S.S.G. § 2G2.2(b)(3)(B) based upon
a finding that his offense involved the distribution for the receipt, or expectation
of receipt, of a thing of value. He argues that, although there was evidence that
he distributed and received child pornography, there was no indication that he
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
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No. 09-30841
distributed the offending images either for the purpose of receiving images in
return or with the expectation that he would receive images in response. He
contends that he only responded to requests from unidentified users in an online
chat room and that his conduct did not involve an in-kind transaction for a thing
of value.
We review the district court’s interpretation and application of the
Guidelines de novo and its factual determinations for clear error. United States
v. Rodriguez-Mesa, 443 F.3d 397, 401 (5th Cir. 2006). Section 2G2.2(b)(3)(B)
provides for a five-level enhancement if the offense involved the distribution of
images “for the receipt, or expectation of receipt, of a thing of value, but not for
pecuniary gain.” § 2G2.2(b)(3)(B). The application notes to § 2G2.2 elaborate on
the kind of distribution to which subdivision (b)(3)(B) was intended to apply:
“[A]ny transaction, including bartering or other in-kind transaction, that is
conducted for a thing of value, but not for profit.” § 2G2.2 cmt. n.1. In a case
involving the exchange of child pornographic material, the “thing of value” is
“the child pornographic material received in exchange for other child
pornographic material bartered in consideration for the material received.” Id.
The record supports that the district court properly found that Roman was
subject to an enhancement under § 2G2.2(b)(3)(B). Roman not only distributed
images to like-minded individuals in a chat room related to child pornography,
he also received a large number of child pornography images from others and
downloaded images originating from the chat room. His exchange of images
with other purveyors of child pornography supports that he had an interest in
facilitating a continuing relationship involving the reciprocal transfer of images,
i.e., Roman distributed images with the expectation that he would receive other
images of child pornography or maintain a relationship with others who
distributed child pornography.
Roman also acknowledged that he traded child pornography with other
online users. The act of trading amounts to a quid-pro-quo exchange conforming
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No. 09-30841
with the commentary’s definition of the type of distribution that qualifies for an
enhancement under § 2G2.2(b)(3)(B) (i.e., “bartering or [any] other in-kind
transaction”). § 2G2.2 cmt. n.1. The district court therefore did not err in
applying a five-level enhancement pursuant to § 2G2.2(b)(3)(B).
AFFIRMED.
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