Argued and Submitted, January 5, 2015, Pasadena, California
Appeal from the United States District Court for the Central District of California. D.C. No. 2:11-cr-00257-ODW-1. Otis D. Wright II, District Judge, Presiding.
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 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.
Gia Kim (argued), Deputy Federal Public Defender, Los Angeles, California, for Defendant-Appellant.
Elizabeth Ryunsoo Yang (argued), Assistant United States Attorney, Los Angeles, California, for Plaintiff-Appellee.
Before: Alex Kozinski,
William A. Fletcher, and John B. Owens, Circuit Judges.
W. FLETCHER, Circuit
Agustin Camarena Hernandez used a peer-to-peer file-sharing network to share and download child pornography. Hernandez shared some of his child pornography with two undercover FBI Special Agents. After agents searched Hernandez's residence and confiscated his computer, they discovered over 11,000 videos and images of child pornography. Many involved girls under the age of twelve, and some as young as nine months old.
Hernandez pled guilty to two counts of possession of child pornography. He was thereafter convicted in a bench trial of two counts of distribution of child pornography. The district court sentenced Hernandez to 262 months in prison and lifetime supervised release. On appeal, Hernandez challenges his sentence. We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). We affirm in almost all respects.
Hernandez amassed a large collection of over 11,000 child pornography videos and images, some of which he shared using a GigaTribe account. GigaTribe is a peer-to-peer file-sharing network that enables its users to share digital files (image, video, or audio) with other users via the Internet. Under GigaTribe's default setting, a user's files are not available to others. To make files available, a GigaTribe user must affirmatively designate certain folders on his computer as " shared" or " non-shared." A GigaTribe user controls access to " shared" files by inviting other users to join his network of " friends," or by accepting " friend" requests.
Hernandez's GigaTribe username was " pthcforyou," which stood for " preteen hardcore for you." Using his account, Hernandez downloaded video and image files of child pornography and made these files available to his GigaTribe friends in a folder designated for sharing. Hernandez understood that the videos and images he intentionally downloaded into his shared folder would be available for viewing and downloading by other users.
Using his " pthcforyou" username, Hernandez " friended" two GigaTribe users who were, in fact, undercover FBI Special Agents. On December 13, 2009, a San Diego FBI Agent accepted Hernandez's friend request. The next day, the agent searched Hernandez's folder and saw files that appeared to contain child pornography. The agent downloaded 1 video and 36 images of suspected child pornography. Two of the images showed girls who were at most eight years old engaged in sexual conduct.
While the agent was downloading these files, Hernandez sent him a message to complain that the agent was " leeching" him by accessing his files and not providing files in return: