US v. McManus: McManus possessed child pornography on his computer, on which he had installed the file-sharing software Gigatribe. An FBI agent downloaded some of the child pornography files in McManus's shared folder using that software, although it's not clear precisely how he did it. McManus pleaded guilty to possession of child pornography. At sentencing, his offence level was enhanced five levels for "distribution . . . for the receipt, or expectation of receipt, of a thing of value." The Guideline range was well above the 120-month statutory maximum and the district court varied down to impose a sentence of 72 months in prison.
McManus challenged his sentence on appeal and the Fourth Circuit agreed, vacating it for being procedurally erroneous. McManus argued that his use of the Gigatribe software supported a mere two-level enhancement for simple distribution, not the five-level enhancement. The court agreed, refusing to adopt the Government's position that the simple use of a limited-access program like Gigatribe (unlike a program that allows anyone access at anytime) implied a quid-pro-quo in the user's decision to allow someone else access to his files. It would create a per se rule that is inappropriate when dealing with an enhancement so closely tied to the defendant's state of mind. Other courts have reached the same conclusion. As the error in calculating McManus's Guideline range wasn't harmless, the court vacated and remanded for resentencing.