The opinion
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 00-4810
ERIC L. BROWN,
Defendant-Appellant.
Appeal from the United States District Court
for the District of South Carolina, at Charleston.
Patrick Michael Duffy, District Judge.
(CR-99-731)
Submitted: July 26, 2001
Decided: August 16, 2001
Before TRAXLER, KING, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
J. Robert Haley, Assistant Federal Public Defender, Charleston, South
Carolina, for Appellant. Scott N. Schools, United States Attorney,
Mary Gordon Baker, Assistant United States Attorney, Charleston,
South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. BROWN
OPINION
PER CURIAM:
Eric L. Brown pled guilty to two counts of receiving child pornog-
raphy, 18 U.S.C.A. § 2252A(a)(2)(A) (West 2000), and one count of
possessing child pornography, 18 U.S.C.A. § 2252A(a)(5)(B), and
was sentenced to a term of forty-six months imprisonment. Brown
appeals his sentence, alleging that the district court erred in finding
that a five-level enhancement for distribution applied under U.S. Sen-
tencing Guidelines Manual § 2G2.2(b)(2) (1998). He also contends
that the district court erred in finding that the enhancement need not
be based on facts charged in the indictment and proved beyond a rea-
sonable doubt. We affirm.
Brown traded approximately thirty images of child pornography
over the internet with a confidential informant for the Federal Bureau
of Investigation. In his interview with the probation officer, Brown
admitted that he had traded images of child pornography with people
who had the same interest, but he opposed the enhancement for distri-
bution under USSG § 2G2.2(b)(2), arguing that it should not be
applied because he had not distributed the images for pecuniary gain
or in a "quid pro quo" manner.
Application Note 1 to § 2G2.2 provides that, for purposes of sen-
tencing under that guideline, "‘[d]istribution’ includes any act related
to distribution for pecuniary gain, including production, transporta-
tion, and possession with intent to distribute." USSG § 2G2.2, cmt.
n.1 (1998). We have held that the enhancement applies to distribu-
tions that are not made solely for pecuniary gain, as have the majority
of circuits that have considered the issue. United States v. Williams,
___ F.3d ___, 2001 WL 672049, at *2-5 (4th Cir. June 15, 2001).
There was information before the sentencing court that Brown had
distributed child pornography to an informant, and that after his guilty
plea Brown acknowledged receiving images of child pornography and
saving the pictures to send to other people. Despite Brown’s dis-
claimer, the court could infer that Brown distributed the images in the
expectation that he would receive similar images in return. Such a
transaction is a distribution for pecuniary gain. Williams, 2001 WL
672049, at *5.
UNITED STATES v. BROWN 3
Brown further contends that, under Apprendi v. New Jersey, 530
U.S. 466, 120 S. Ct. 2348 (2000), the enhancement violated his due
process rights because distribution was not charged in the indictment
or proved beyond a reasonable doubt. His argument is foreclosed by
our decision in United States v. Kinter, 235 F.3d 192, 199-201 (4th
Cir.), cert. denied, 121 S. Ct. 1393 (2001) (holding that Apprendi
does not affect a judge’s application of the guidelines when the
enhancement does not increase the statutory range).
We therefore affirm the sentence. We dispense with oral argument
because the facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the decisional
process.
AFFIRMED