and Submitted March 23, 2016 San Francisco, California
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.
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
M. Flake (argued), Assistant United States Attorney;
Elizabeth O. White, Appellate Chief; United States
Attorney's Office, Las Vegas, Nevada; for
Before: M. Margaret McKeown, [*] Johnnie B. Rawlinson, and Mary H.
Murguia, Circuit Judges.
panel affirmed in part and vacated in part a sentence for
sexual exploitation of a child, and issued a limited remand
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.
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.
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.
MCKEOWN, CIRCUIT JUDGE.
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.
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.,  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.
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.
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.
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
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."
Applicability of U.S.S.G. § 2G2.1(b)(3)
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." Id. We review de novo a district
court's interpretation of the Sentencing Guidelines.
United States v. Lloyd, 807 F.3d 1128, 1172 (9th
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