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United States Court of Appeals, Fifth Circuit.

UNITED STATES of America, Plaintiff−Appellee, v. Eric FURZLAND, Defendant−Appellant.

No. 18-20230

Decided: January 24, 2019

Before SMITH, WIENER, and WILLETT, Circuit Judges. Audrey Lynn Maness, Carmen Castillo Mitchell, Assistant U.S. Attorney, U.S. Attorney's Office, Southern District of Texas, Houston, TX, for Plaintiff-Appellee Marjorie A. Meyers, Federal Public Defender, Kathryn Shephard, Federal Public Defender's Office, Southern District of Texas, Houston, TX, for Defendant-Appellant

Eric Furzland appeals the 288-month sentence imposed for distributing, receiving, and possessing child pornography. Furzland maintains that the district court incorrectly enhanced his advisory guideline range by five levels for distributing child pornography in exchange for valuable consideration. U.S.S.G. § 2G2.2(b)(3)(B). We review the district court’s factual findings for clear error and its application of the sentencing guidelines de novo. United States v. Halverson, 897 F.3d 645, 651 (5th Cir. 2018) (citing United States v. Groce, 784 F.3d 291, 294 (5th Cir. 2015) ).

This guideline was amended in 2016 to apply if “the defendant agreed to an exchange with another person under which the defendant knowingly distributed [child pornography] to that other person for the specific purpose of obtaining something of valuable consideration from that other person, such as other child pornographic material.” § 2G2.2, comment. (n.1). We require four findings to apply this guideline: The defendant (1) agreed to an exchange with another person, (2) knowingly distributed child pornography to that person, (3) had the purpose of obtaining something of valuable consideration, and (4) received valuable consideration from that person. See Halverson, 897 F.3d at 652. The district court erred by inferring that Furzland distributed child pornography to another person for valuable consideration merely because the ChatStep program allows him to exchange files with other users. The district court did not make the necessary findings under the amended guideline.

The government has not shown that the error was harmless. See United States v. Ibarra-Luna, 628 F.3d 712, 714, 719 (5th Cir. 2010). Accordingly, the judgment of sentence is VACATED and REMANDED for resentencing.



PER CURIAM: * FN* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.

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