United States v. Hernandez, No. 13-10428 (McKeown* with Murguia; partial dissent from Rawlinson) --- In a previous round of this appeal from a sentence imposed following a jury trial on child pornography charges, the panel (then with Judge Kozinski on it) remanded the case to the district court for findings about the distribution enhancement. In this appeal following the limited remand, then panel (with Judge McKeown replacing Judge Kozinski, who retired after oral argument) affirmed the distribution enhancement, holding that sharing an image of child pornography with the child depicted in that image constitutes "distribution" under USSG § 2G2.1. The panel remanded the case again for the limited purpose of allowing the district judge to clarify whether he denied the defendant a downward adjustment for acceptance of responsibility because he exercised his right to trial.　

This case involves sexting, which would not ordinarily generate child pornography charges. But the defendant was a girls' softball coach, and the other person in the relationship was a 17-year-old girl who was on the team. They were sharing images of themselves with each other, including naked images of the girl and images of themselves engaged in sexual acts. They were caught when the girl's father saw the images on her phone. The defendant went to trial, lost, and received a 284-month sentence. In the previous stage of the appeal, the panel remanded for findings in light of United States v. Roybal, 737 F.3d 621 (9th Cir. 2013), directing the court to consider whether the upward adjustment for "distribution" under the Guidelines was proper where the images were shared only between these two people. The court held unanimously that it was.　

There is a challenge to the substantive reasonableness of the sentence in this appeal. But the panel did not resolve it, because it first had to resolve a procedural question about the sentencing judge's reasons for denying a downward adjustment for acceptance of responsibility. The judge faulted the defendant for his apparent lack of contrition at sentencing. "I have never had a defendant," he said, " -- there have been one or two maybe -- after being found guilty, who didn't feel contrition.... everybody feels contrition now. Now, when they are looking at spending time in prison, everybody feels remorse for what they did." The judge observed that there was no remorse for "putting the victim through the agony of testifying at trial." And then he said to the defendant, "You decided to roll the dice, and it came up snake eyes. You didn't think she'd testify, and she did. You went -- you wanted to go to trial, so you went to trial. And Probation rightly recommends 327 months for that." That last statement came right before the judge pronounced the sentence. Under these circumstances, the court said, the judge ran "headlong" into the Ninth Circuit precedent that forbade judges from relying on the defendant's decision to exercise his right to trial as a basis for denying a downward adjustment for acceptance of responsibility. The panel remanded the case to give the judge an opportunity to explain that that was not what he was doing.　

Judge Rawlinson dissented from the limited remand. She did not read the defendant's brief as challenging the procedural reasonableness of the sentence (a failure to award the downward adjustment for acceptance of responsibility), but only the substantive reasonableness of the sentence. Under that rubric, she saw no problem with the sentencing judge's statements. "It is apparent that the primary focus of the court's concern was Hernandez's manipulation of the victim and lack of remorse." She would have affirmed the sentence in its entirety.　

Congratulations to Assistant Federal Public Defender Amy Cleary of Las Vegas.　

The decision is here:　

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/07/10/13-10428.pdf