United States v. Hernandez, No. 12-50585 (Fletcher with Kozinski and Owens) --- The Ninth Circuit affirmed "in almost all respects" a 262-month sentence imposed for possessing and distributing child pornography, discussing issues involving a Guidelines enhancement that is available in those kinds of cases and procedural and substantive challenges to the sentence.

The defendant was distributing files using the peer-to-peer file-sharing program GigaTribe.  Using GigaTribe, a person can share his files only by taking affirmative action on his computer to designate certain folders as viewable by other GigaTribe users.  GigaTribe has a social-media component as well, under which only "friends" of the user may access those shared files.  The defendant here friended two undercover FBI agents, and complained when the agents would not reciprocate by sharing files with him after the agents had downloaded some of his files.  He ultimately pleaded guilty to two counts of possession of child pornography (one for each undercover agent "friend") and was convicted at a bench trial of two counts of distributing it.

The Ninth Circuit held that the district court correctly applied the 5-level upward adjustment under U.S.S.G. § 2G2.2(b)(3)(B) for distributing the material with the expectation of receiving anything of value, but not for pecuniary gain.  Although simply operating a peer-to-peer networking client for the purpose of sharing child pornography does not support the adjustment by itself, here the defendant's complaints that the undercover agents were not sharing material with him supported applying the upward adjustment.

The panel also rejected procedural challenges to the sentence because it disagreed with the defendant's reading of the sentencing record.  It carefully parsed the sentencing judge's words to conclude that he properly relied on allegations that the defendant had molested his own children in imposing the sentence.  And while the panel agreed with the Second Circuit that it would be improper to impose sentence on the belief that the defendant has an untreatable condition, here the judge did not do that.  And the panel disagreed with the defendant's reading of the record under which the judge rejected the use-of-a-computer upward adjustment after rejecting it on policy grounds.

In light of the size of the defendant's collection of child pornography and the fact that he was convicted of both possession and distribution of it, the 262-month sentence was not substantively unreasonable.

The parties agreed that the written judgment needed to be conformed to the oral pronouncement of sentence, so the panel remanded to allow the district court to make these "ministerial changes" to that document.  But because the panel was otherwise affirming the sentence, there was no need to direct reassignment to a different district judge on remand.  (It should be noted that the Ninth Circuit has directed reassignment in other cases involving Judge Wright of the Central District of California.)

A hard-fought battle by Deputy Federal Public Defender Gia Kim of the Central District of California.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2015/08/03/12-50585.pdf