United States v. Hernandez, No. 12-50585 (9th Cir. 2015)
Annotate this CaseDefendant pled guilty to two counts of possession of child pornography and was convicted of two counts of distribution of child pornography. On appeal, defendant challenged his 262 month sentence. The court held that U.S.S.G. 2G2.2(b)(3)(B) applies to a child pornography distributor who anticipates receiving something of value in return for his distribution, even in the absence of a specific agreement providing for reciprocity. In this case, there was sufficient evidence that defendant expected that he would receive child pornography in return for sharing his videos and images on GigaTribe. Therefore, the district court properly applied the five-level enhancement. The court also concluded that the district court did not impermissibly rely on the allegations that defendant abused his daughters when it determined his sentence; the court rejected defendant's claim that the district court relied on its personal belief that defendant was "incurable" in determining his sentence where the district court depended on other, substantial, case-specific evidence about defendant's addiction to child pornography; and the district court properly imposed a two-level sentencing enhancement under U.S.S.G. 2G2.2(b)(6). Finally, the court concluded that the sentence was substantively reasonable. The court affirmed the sentence, remanding with an instruction to amend the written judgment to conform with the oral pronouncement.
Court Description: Criminal Law. The panel remanded with an instruction to amend the written judgment to conform with the oral pronouncement of the sentence, and otherwise affirmed the sentence, in a case in which the defendant pled guilty to two counts of possession of child pornography. The panel held that U.S.S.G. § 2G2.2(b)(3)(B), which provides for a five-level enhancement for offenders who distribute child pornography “for the receipt, or expectation of receipt, of a thing of value,” applies to a child pornography distributor who anticipates receiving something of value in return for his distribution, even in the absence of a specific agreement providing for reciprocity. The panel held that on the facts of this case, there is sufficient evidence that the defendant expected that he would receive child pornography in return for sharing his videos and images on a peer-to-peer file-sharing network, and that the district court appropriately applied the enhancement. The panel found that the district court did not impermissibly rely on unreliable allegations that the defendant abused his daughters when it determined his sentence. The panel rejected the defendant’s argument that in determining his sentence the district court inappropriately UNITED STATES V. HERNANDEZ 3 relied on a conclusion that the defendant was not “curable” or “treatable.” The panel rejected the defendant’s argument that the district court improperly imposed an enhancement under U.S.S.G. § 2G2.2(b)(6), based on use of a computer to distribute the child pornography, after having rejected that enhancement on policy grounds. The panel rejected the defendant’s argument that the sentence is substantively unreasonable.
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