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United States v. Hernandez

United States Court of Appeals, Ninth Circuit

July 10, 2018

United States of America, Plaintiff-Appellee,
v.
Albert Silva Hernandez, Jr., Defendant-Appellant.

          Argued and Submitted March 23, 2016 San Francisco, California

          Appeal from the United States District Court for the District of D.C. No. 2:12-cr-00254-JCM-PAL-1 Nevada James C. Mahan, District Judge, Presiding.

          Amy B. Cleary (argued) and Alina M. Shell, Assistant Federal Public Defenders; Rene L. Valladares, Federal Public Defender; Office of the Federal Public Defender, Las Vegas, Nevada; for Defendant-Appellant.

          Adam M. Flake (argued), Assistant United States Attorney; Elizabeth O. White, Appellate Chief; United States Attorney's Office, Las Vegas, Nevada; for Plaintiff-Appellee.

          Before: M. Margaret McKeown, [*] Johnnie B. Rawlinson, and Mary H. Murguia, Circuit Judges.

         SUMMARY [**]

         Criminal Law

         The panel affirmed in part and vacated in part a sentence for sexual exploitation of a child, and issued a limited remand for resentencing.

         The panel affirmed the district court's determination that the distribution-of-pornography enhancement set forth in U.S.S.G. § 2G2.1(b)(3) applies when the perpetrator creates an illicit image of a minor victim and shares it only with the victim.

         The panel issued a limited remand for resentencing because the record suggests that the district court penalized the defendant by increasing his sentence based on his decision to exercise his Sixth Amendment right to go to trial.

         Judge Rawlinson dissented from the portion of the majority opinion concluding that the district judge impermissibly "punished" the defendant by tethering his sentence to the exercise of his constitutional right to have his guilt determined by a jury.

          OPINION

          MCKEOWN, CIRCUIT JUDGE.

         This appeal requires us to consider whether the distribution of pornography enhancement set forth in United States Sentencing Guidelines ("U.S.S.G.") § 2G2.1(b)(3) applies where a perpetrator creates an illicit image of a minor victim and shares it only with the victim herself, rather than with a third party. We hold that such conduct constitutes "distribution" as that term is defined in the Sentencing Guidelines and accompanying commentary, and we therefore affirm the distribution enhancement imposed by the district court on Albert Silva Hernandez, Jr. However, because the record suggests that the district court penalized Hernandez by increasing his sentence based on his decision to exercise his Sixth Amendment right to go to trial, we issue a limited remand for resentencing.

         I. Background

         Hernandez coached softball at Silverado High School in Las Vegas, Nevada, and for a club softball team of girls aged eighteen years and younger. Hernandez met N.C., [1] who was 17 years old and a minor under federal law, when she joined his club softball team. Because N.C. was playing a new position, Hernandez provided her with extra coaching sessions to improve her softball skills. After several months, the coach-player relationship turned sexual.

         In the course of their relationship, N.C. and Hernandez exchanged photographs using a password-protected cellular phone application that limited access of the photos sent to only N.C. and Hernandez. N.C. took sexually explicit photographs of herself with her mobile phone, often at Hernandez's direction, and sent the photographs to Hernandez's mobile phone. Hernandez took sexually explicit photographs of himself on his mobile phone and, at times at N.C. 's direction, sent those photographs to N.C. on her mobile phone. Hernandez also took photos of himself and N.C. engaged in sexual activity together, and later sent those photos to N.C. via his mobile phone.

         The relationship between Hernandez and N.C. came to light when N.C. inadvertently called home while engaged in sexual activities with Hernandez. N.C. 's father retrieved her mobile phone and delivered it to the police.

         After sexually explicit photographs and text messages were recovered from N.C. 's mobile phone, Hernandez was charged with eight counts of violating 18 U.S.C. §§ 2251(a), (e) (sexual exploitation of a child) and three counts of violating 18 U.S.C. §§ 2252A(a)(1), (b) (transporting child pornography). Following a jury trial, Hernandez was convicted of the sexual exploitation counts and acquitted of the transporting counts. After applying several enhancements and denying a reduction for acceptance of responsibility, the district court sentenced Hernandez to 284 months' imprisonment.

         II. Procedural History

         This is Hernandez's second round before this court. In the first appeal, we rejected Hernandez's arguments "that the government impermissibly changed its theory of prosecution during rebuttal argument" and that application of enhancements for sexual contact and abuse of trust constituted impermissible "double counting." United States v. Hernandez, 604 Fed.Appx. 621, 622 (9th Cir. 2015) (unpublished). We remanded to the district court to reconsider application of the distribution enhancement set forth in U.S.S.G. § 2G2.1(b)(3) in light of our decision in United States v. Roybal, 737 F.3d 621 (9th Cir. 2013). Id. at 622. The district court was "to consider in the first instance whether the distribution enhancement may be applied when the defendant does not distribute the image to a third party." Id. We deferred consideration of "the reasonableness of the sentence imposed pending the district court's consideration of the remanded issue." Id. Following supplemental briefing and a hearing on remand, the district court concluded in light of Roybal that "the [distribution] enhancement should apply in this case."

         III. Analysis

         A. Applicability of U.S.S.G. § 2G2.1(b)(3)

         Resolution of this case turns in part on what it means to "distribute" child pornography under U.S.S.G. § 2G2.1(b)(3), which provides for a two-level sentencing enhancement "[i]f the offense involved distribution."[2] Id. We review de novo a district court's interpretation of the Sentencing Guidelines. United States v. Lloyd, 807 F.3d 1128, 1172 (9th Cir. 2015).

         The government contends that the term "distribution" is broad enough to encompass the transfer of illicit pornographic images solely to the victim or victims depicted in the images themselves. By contrast, Hernandez argues that "distribution" ...


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