United States v. Kuchinski ( 2006 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 05-30607
Plaintiff-Appellee,
v.  D.C. No.
CR-04-00149-RFC
JOHN CHARLES KUCHINSKI,
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the District of Montana
Richard F. Cebull, District Judge, Presiding
Argued and Submitted
October 24, 2006—Seattle, Washington
Filed November 27, 2006
Before: Alex Kozinski and Ferdinand F. Fernandez,
Circuit Judges, and Cormac J. Carney,* District Judge.
Opinion by Judge Fernandez
*The Honorable Cormac J. Carney, United States District Judge for the
Central District of California, sitting by designation.
18789
UNITED STATES v. KUCHINSKI 18793
COUNSEL
Brad L. Arndorfer, Arndorfer Law Firm, P.C., Billings, Mon-
tana, for the appellant.
Marcia Hurd, Assistant U.S. Attorney, Billings, Montana, for
the appellee.
OPINION
FERNANDEZ, Circuit Judge:
John C. Kuchinski appeals his conviction and sentence for
receipt and possession of child pornography. 18 U.S.C.
§§ 2252A(a)(2), (a)(5)(B). Principally, he asserts that his
prosecution for receipt and possession violated the double
jeopardy clause,1 that any use of the United States Sentencing
Guidelines violates the separation of powers doctrine, and that
he was improperly sentenced when all child pornography
images on his computer were counted for sentencing pur-
poses. We affirm his conviction, but vacate his sentence and
remand.
1
U.S. Const. amend. V.
18794 UNITED STATES v. KUCHINSKI
BACKGROUND
After obtaining information that Kuchinski was involved in
child pornography, the FBI obtained a search warrant for his
computer. Upon execution of that warrant, between 15,120
and 19,000 separate images of child pornography were recov-
ered therefrom. Sixteen of those images were located in the
computer’s downloaded files and 94 were located in its
deleted files (recycle bin). Kuchinski does not argue that he
is not responsible for the possession of those images. How-
ever, 1,106 images were in the Active Temporary Internet
Files and another 13,904 to 17,784 images were in the
Deleted Temporary Internet Files.2 Thereafter, Kuchinski was
indicted for receipt of child pornography in violation of 18
U.S.C. § 2252A(a)(2) (count I), possession of child pornogra-
phy, 18 U.S.C. § 2252A(a)(5)(B) (count II), and forfeiture of
his computer equipment, 18 U.S.C. § 2253 (count III). He
pled not guilty.
Kuchinski then entered into a plea agreement which pro-
vided that he would plead guilty to possession of child por-
nography and admit the forfeiture, whereupon the government
would dismiss the receipt of child pornography count. Alas,
although the plea agreement spelled out the fact that Kuchin-
ski understood he was pleading to a charge which carried a
maximum term of imprisonment of ten years, at the change of
plea hearing he argued that the ten-year maximum term man-
dated by the PROTECT Act3 did not apply to him. The gov-
ernment disputed that, said it was a brand new issue, and
declared that it was not willing to go forward with the plea
agreement if Kuchinski refused to plead to charges under the
PROTECT Act. After some discussion, the district court
refused to accept or approve the plea agreement at that point.
The court then continued the hearing to a later date.
2
These are sometimes hereafter referred to as the cache files.
3
PROTECT Act of 2003, Pub. L. No. 108-21, 117 Stat. 650 (2003).
UNITED STATES v. KUCHINSKI 18795
At the later hearing, it became apparent that Kuchinski
would not accept the plea agreement as presented, and he,
instead, announced that he was prepared to plead guilty to to
all three counts of the indictment, if that could be a condi-
tional plea. The government, however, refused to agree to a
conditional plea. Therefore, Kuchinski did plead guilty to pos-
session of child pornography (count II) and admitted the for-
feiture (count III). That left the receipt of child pornography
charge (count I) for trial.
But Kuchinski still had one more trick up his sleeve. He,
in effect, contended that because all elements of possession of
child pornography were incorporated into the elements of
receipt of child pornography, it would violate double jeopardy
if the district court proceeded to trial on the latter count. The
district court was not convinced and did proceed to hold a
bench trial at which Kuchinski was found guilty.
Then came sentencing and a host of new objections. The
only objections relevant on this appeal are Kuchinski’s claims
that: since the PROTECT Act, the separation of powers doc-
trine is violated because the United States Sentencing Com-
mission need not have any judges on it; the PROTECT Act
also removes sentencing discretion from district judges and,
thereby, offends due process; and the district court erred when
it calculated the number of child pornography images for
which Kuchinski would be charged, a calculation that affected
his Sentencing Guideline offense level. See USSG
§ 2G2.2(b)(6).4
The district court considered and rejected Kuchinski’s chal-
lenges and sentenced him to seventy months imprisonment
and three years of supervised release on both counts, with the
sentences to run concurrently. This appeal followed.
4
Unless otherwise stated, all references are to the Sentencing Guidelines
effective as of November 1, 2003.
18796 UNITED STATES v. KUCHINSKI
JURISDICTION AND STANDARDS OF REVIEW
The district court had jurisdiction pursuant to 18 U.S.C.
§ 3231. We have jurisdiction pursuant to 28 U.S.C. § 1291
and 18 U.S.C. § 3742(a).
We review claims that the district court is required to
enforce a plea agreement de novo. See United States v.
Fagan, 996 F.2d 1009, 1013 (9th Cir. 1993). We also review
claims that a rule or statute violates the separation of powers
doctrine de novo. See United States v. Yacoubian, 24 F.3d 1,
3 (9th Cir. 1994). Similarly, we review claims of double jeop-
ardy violations de novo. See United States v. Jose, 425 F.3d
1237, 1240 (9th Cir. 2005). And, as with other constitutional
issues, we review claims that the Sentencing Guidelines are
unconstitutional de novo. See United States v. Leasure, 319
F.3d 1092, 1096 (9th Cir. 2003).
We review the district court’s interpretation of the Sentenc-
ing Guidelines de novo. See United States v. Nielsen, 371
F.3d 574, 582 (9th Cir. 2004). Moreover, we review applica-
bility of the Sentencing Guidelines to a particular offense de
novo. See United States v. Alcarez-Camacho, 340 F.3d 794,
796 (9th Cir. 2003). The district court’s applications of the
Sentencing Guidelines to the facts of a case are reviewed for
an abuse of discretion. See United States v. Miguel, 368 F.3d
1150, 1155 (9th Cir. 2004). However, factual findings in the
sentencing phase are reviewed for clear error. Id.
DISCUSSION
Kuchinski launches a number of attacks on the process that
led to his conviction on both substantive counts—receipt of
child pornography and possession of child pornography. We
will first consider those. Thereafter, we will consider his
attack on the whole Guideline regime as well as its applica-
tion to those convicted of child pornography. Finally, we will
UNITED STATES v. KUCHINSKI 18797
consider his assertion that the Guideline range was calculated
improperly.
A. The Findings of Guilt
(1) The Plea Agreement
Kuchinski insists that once the government entered into a
plea agreement, it was absolutely bound to the agreement’s
terms, even before the district court accepted the agreement.
He is wrong.
[1] Had the district court already accepted the plea agree-
ment, the government could not have easily withdrawn from
it. See Fagan, 996 F.2d at 1013. But here the district court had
not yet accepted it and “[a] plea agreement that has not been
entered and accepted by the trial court does not bind the par-
ties.” Id.; see also United States v. Alvarez-Tautimez, 160
F.3d 573, 576-77 (9th Cir. 1998); United States v. Savage,
978 F.2d 1136, 1138 (9th Cir. 1992); cf. Mabry v. Johnson,
467 U.S. 504, 507-08, 104 S. Ct. 2543, 2546, 81 L. Ed. 2d
437 (1984). We recognize that where detrimental reliance is
shown, the government may be bound even before the district
court accepts the agreement,5 but no detrimental reliance
appears here.
(2) The Attempt to Enter a Conditional Plea
Once his allonge regarding the plea agreement was parried,
Kuchinski tried to unilaterally enter a plea to all counts, while
preserving his claim about the plea agreement. When the gov-
ernment refused to accede to that new proposition, Kuchinski
complained that Federal Rule of Criminal Procedure 11(a)(2)
was an unconstitutional violation of the separation of powers
5
See Savage, 978 F.2d at 1138; McKenzie v. Risley, 842 F.2d 1525,
1536 n.22 (9th Cir. 1988) (en banc), approving of McKenzie v. Risley, 801
F.2d 1519, 1527-28 (9th Cir. 1986).
18798 UNITED STATES v. KUCHINSKI
doctrine because permitting a conditional plea was an issue
that should be left to the courts alone. Again, he is wrong.
[2] It is, of course, important to maintain a separation of
powers, lest liberty be overturned by an undue concentration
of power in one of the branches of the government. See Mis-
tretta v. United States, 488 U.S. 361, 380-82, 109 S. Ct. 647,
659-60, 102 L. Ed. 2d 714 (1989). But “the greatest security
against tyranny—the accumulation of excessive authority in
a single Branch—lies not in a hermetic division among the
Branches, but in a carefully crafted system of checked and
balanced power within each Branch.” Id. at 381, 109 S. Ct. at
659-60. Thus, “our constitutional system imposes upon the
Branches a degree of overlapping responsibility, a duty of
interdependence as well as independence the absence of
which ‘would preclude the establishment of a Nation capable
of governing itself effectively.’ ” Id. at 381, 109 S. Ct. at 659;
see also United States v. Ray, 375 F.3d 980, 995 (9th Cir.
2004).
[3] None of the dire consequences that the doctrine seeks
to protect us from are threatened by a rule providing that a
defendant may enter a conditional guilty plea “[w]ith the con-
sent of the court and the government.” Fed. R. Crim. P.
11(a)(2). It is true that courts do have an interest in the effi-
cient administration of justice,6 but it is far from clear that the
taking of a conditional guilty plea will always be efficient. In
fact, it may cause what almost amounts to an interlocutory
appeal, and result in a great loss of ultimate efficiency. See
Fed. R. Crim. P. 11(a)(2) advisory committee’s notes. It may
also invade the Executive’s ultimate ability to fully and fairly
pursue a conviction, and the government does have an interest
in that pursuit. See Ohio v. Johnson, 467 U.S. 493, 502, 104
S. Ct. 2536, 2542, 81 L. Ed. 2d 425 (1984).
6
See, e.g., Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 716, 116
S. Ct. 1712, 1720-21, 135 L. Ed. 2d 1 (1996); Wong v. Regents of Univ.
of Cal., 410 F.3d 1052, 1060 (9th Cir. 2005); In re Extradition of Kirby,
106 F.3d 855, 860 n.5 (9th Cir. 1996).
UNITED STATES v. KUCHINSKI 18799
[4] At any rate, while Kuchinski sees great danger to our
system, we are not gallied by his nightmare. Rather, we see
a somewhat common occurrence in a slightly different setting.
In effect, the rule simply provides for a resolution short of
trial when both parties and the court approve of it. We per-
ceive no danger that a “commingling of functions,” if com-
mingling it be, will result in an encroachment on one branch
or an improper aggrandizement of another branch. Ray, 375
F.3d at 995; cf. United States v. U.S. Dist. Court, 464 F.3d
1065, 1066-67 (9th Cir. 2006) (per curiam) (under Fed. R.
Crim. P. 23(a) district court improperly granted defendant’s
motion for a bench trial when government did not agree).
(3) Double Jeopardy
When Kuchinski’s attempt to have things his way was par-
ried, the government’s riposte was “go to trial.” The district
court agreed, but Kuchinksi sought to avoid that result with
the claim that once he pled guilty to possession of child por-
nography (count II), he could not be tried for receipt of child
pornography (count I). That was because, he said, the former
was a lesser included offense of the latter. While the argument
has some plausibility on its face,7 it is based on a flawed read-
ing of double jeopardy law.
In a case where a defendant was tried in a single prosecu-
tion with “greater and lesser included offenses,” but pled
guilty to a lesser offense before trial, the Supreme Court
declared that double jeopardy was not implicated in his trial
on the greater offense. Johnson, 467 U.S. at 500, 104 S. Ct.
at 2541. The Court reiterated that proposition in Ball v. United
7
See United States v. Romm, 455 F.3d 990, 1001 (9th Cir. 2006)
(“Generally, federal statutes criminalizing the receipt of contraband
require a knowing acceptance or taking of possession of the prohibited
item.” (internal quotation marks omitted)); see also United States v. Mohr-
bacher, 182 F.3d 1041, 1048 (9th Cir. 1999) (receiving materials is taking
possession of them).
18800 UNITED STATES v. KUCHINSKI
States, 470 U.S. 856, 859, 860 n.7, 105 S. Ct. 1668, 1670,
1671 n.7, 84 L. Ed. 2d 740 (1985) (stating that a person can
be prosecuted simultaneously for both receiving a firearm and
for possessing that same firearm); see also Jose, 425 F.3d at
1246-47 (stating that a person can be prosecuted for greater
and lesser included offenses in the same indictment).
[5] In Blockburger v. United States, 284 U.S. 299, 304, 52
S. Ct. 180, 182, 76 L. Ed. 306 (1932), the Court held that in
order for a defendant to be punished on multiple counts, each
count “requires proof of a fact which the other does not.”
Here, Kuchinski was charged with two separate counts of
receiving and possessing child pornography. But he was not
punished separately for these counts, because his possession
and receipt convictions were grouped pursuant to USSG
§ 3D1.2(d) for the purposes of the Guidelines calculation.
And “[w]hile the Double Jeopardy Clause may protect a
defendant against cumulative punishments for convictions on
the same offense, the Clause does not prohibit the State from
prosecuting [defendant] for such multiple offenses in a single
prosecution.” Johnson, 467 U.S. at 500, 104 S. Ct. at 2541
(emphasis added).
[6] Therefore, Kuchinski’s attack on his trial for receipt of
child pornography must fail.
[7] Kuchinski does not appear to argue that he should not
have had convictions and judgments entered for both receipt
and possession of child pornography, even if it were proper
to try him for both offenses. If, as it seems, the counts were
based on the same acts, entering judgment on both of the
offenses would be improper. Nothing in the statutory scheme
suggests that Congress intended that there be two punish-
ments for a single act and courts cannot ignore the collateral
consequences, which are not eliminated by concurrent sen-
tencing. See Ball, 470 U.S. at 861-65, 105 S. Ct. at 1671-73;
United States v. Martin, 732 F.2d 591, 592-93 (7th Cir. 1984).
We recognize that Kuchinski’s failure to clearly raise and
UNITED STATES v. KUCHINSKI 18801
argue this particular issue would generally waive it. However,
because he did raise a double jeopardy issue and because we
must vacate the judgment and sentence, upon remand the dis-
trict court should revisit this question also and, unless some
considerations not presently apparent to us require otherwise,
the district court should vacate the conviction on one of the
counts without prejudice to reinstating it should the other
count later fall on either direct or collateral review. See Ball,
470 U.S. at 865, 105 S. Ct. at 1673-74; Jose, 425 F.3d at
1247; Martin, 732 F.2d at 592-93.
B. Kuchinski’s Sentencing
(1) The Sentencing Commission’s Composition;
Separation of Powers
[8] Kuchinski first claims that the Sentencing Guidelines
are all unconstitutional. He does so because, as he points out,
when first enacted in 1984, 28 U.S.C. § 991(a) provided that
in constituting the Sentencing Commission: “[a]t least three
members shall be federal judges . . . .” Those were to be
selected by the President from a list of six judges recom-
mended by the Judicial Conference of the United States. Id.
Section 401(n) of the PROTECT Act changed that. Now,
§ 991(a) provides that “[n]ot more than 3 of the members
shall be Federal judges . . . .” That, argues Kuchinski, violates
separation of powers because it is possible that there would be
no judges on the Sentencing Commission, and the judges
would never constitute a majority of the seven voting mem-
bers of that body. See 28 U.S.C. § 991(a).
[9] The difficulty with that argument is that § 991(a)
always contemplated the possibility that judges would be less
than a majority, and the Supreme Court did not see that as a
flaw in its composition. Rather, it was content with the fact
that the body was located in the judicial branch, regardless of
its composition.8 It also noted that the placement of an admin-
8
Mistretta, 488 U.S. at 384-85, 109 S. Ct. at 661.
18802 UNITED STATES v. KUCHINSKI
istrative agency like the Commission in the judicial branch
did not unite its powers with those “of the Judiciary in a way
that has meaning for separation-of-powers analysis,”9 or pre-
vent “the Judicial Branch from accomplishing its constitution-
ally assigned functions,”10 or “involve a degree of political
authority inappropriate for a nonpolitical Branch.”11
Perhaps more to the purpose, the Court expressed no con-
cern about the possibility that judges would not control the
Sentencing Commission, but, rather, addressed the difficulty
presented by the presence of any judges on the Commission.
See Mistretta, 488 U.S. at 397, 109 S. Ct. at 668; see also
Gubiensio-Ortiz v. Kanahele, 857 F.2d 1245, 1254-60 (9th
Cir. 1988) (pointing out problems with the placement of
judges on the commission), vacated sub nom., United States
v. Chavez-Sanchez, 488 U.S. 1036, 109 S. Ct. 859, 102 L. Ed.
2d 984 (1989).
The Court then declared that judges could undertake “extra-
judicial duties,”12 that the “power . . . these judges wield as
Commissioners is not judicial power,”13 “that the participation
of federal judges on the Sentencing Commission does not
threaten, either in fact or in appearance, the impartiality of the
Judicial Branch,”14 and, finally, that the “mixed nature of the
Commission” does not require “Article III judges to share
judicial power with nonjudges.”15 In short, “the Commission
is not a court and exercises no judicial power.”16
9
Id. at 393, 109 S. Ct. at 666.
10
Id. at 396, 109 S. Ct. at 667 (internal quotation marks omitted).
11
Id. at 396, 109 S. Ct. at 667.
12
Id. at 398, 109 S. Ct. at 668.
13
Id. at 404, 109 S. Ct. at 671.
14
Id. at 407, 109 S. Ct. at 673.
15
Id. at 408, 109 S. Ct. at 674.
16
Id.
UNITED STATES v. KUCHINSKI 18803
[10] In other words, the real danger to separation of powers
was in the requirement that judges perform nonjudicial duties
by serving on the Sentencing Commission, and the amend-
ment to § 991(a) has allayed that danger. The amendment cer-
tainly did not exacerbate the danger and did not violate
separation of powers principles.
(2) Individualized Sentencing
By enactment of § 401(a) of the PROTECT Act, Congress
sought to restrict the discretion of sentencing judges in the
area of crimes against children. 18 U.S.C. § 3553(b)(2). It
provided that courts “shall consider only the sentencing
guidelines, policy statements, and official commentary of the
Sentencing Commission.” Id. Kuchinski asserts that the
removal of discretion from judges in the sentencing area vio-
lates a defendant’s right to due process.17 See U.S. Const.
amend. V. Kuchnski cites no authority for the dubious propo-
sition that Congress cannot legislate penalties for crimes and
leave the judiciary with no ability to deviate from those penal-
ties,18 but we need not referee a duel over that issue at this
time. In fact, in this case the district court made it perfectly
clear that it considered the Sentencing Guidelines to be advi-
sory only and did exercise its discretion. Therefore, Kuchin-
ski’s concern about what might be wrought by the application
of § 3553(b)(2) is of no moment to the sentence imposed
upon him. In fine, this is a situation where the parties should
17
He does not challenge the section in question on the basis that it vio-
lates the Sixth Amendment to the United States Constitution. See United
States v. Booker, 543 U.S. 220, 243-44, 125 S. Ct. 738, 755-56, 169 L. Ed.
2d 621 (2005). Other courts have held that it does. See United States v.
Grigg, 442 F.3d 560, 564 (7th Cir. 2006); United States v. Selioutsky, 409
F.3d 114, 117 (2d Cir. 2005); United States v. Yazzie, 407 F.3d 1139, 1146
(10th Cir. 2005) (en banc). We express no opinion on the issue.
18
In fact, it is doubtful that he could find any. See, e.g., United States
v. Hungerford, No. 05-30500, slip op. 17559, 17569-70 (9th Cir. Oct. 13,
2006); United States v. Mueller, 463 F.3d 887, 891-92, (9th Cir. 2006)
18804 UNITED STATES v. KUCHINSKI
delope and, thus, save themselves for a more serious encoun-
ter.
(3) Number of Child Pornography Images
[11] We have made it plain that a person does knowingly
receive and possess19 child pornography images when he
seeks them out over the internet and then downloads them to
his computer. In fact, we have declared that, “[i]n the elec-
tronic context, a person can receive and possess child pornog-
raphy without downloading it, if he or she seeks it out and
exercises dominion and control over it.” Romm, 455 F.3d at
998; see also United States v. Tucker, 305 F.3d 1193, 1204
(10th Cir. 2002). Thus, Kuchinski properly concedes that he
did knowingly receive and possess the 110 images that he
downloaded. But he was charged with many more—an addi-
tional 13,904 to 17,984 images, which appeared in his cache
files. That makes a substantial difference to the calculation of
his advisory Guideline range. Pursuant to the Sentencing
Guidelines, the base offense level for his offense was 17,20
and, if the offense involved 110 images, 2 levels would be
added to that,21 but if it included over 600 images, 5 levels
would be added.22 The difference is wholly related to the
cache files. Did Kuchinski knowingly receive and possess the
images in those files, or, rather, does the evidence support a
determination that he did?23 We think not.
According to the evidence before the district court, when a
person accesses a web page, his web browser will automati-
19
Romm, 455 F.3d at 998 (seeking child pornography out and exercising
dominion and control over it results in possession).
20
USSG § 2G2.2(a).
21
USSG § 2G2.2(b)(6)(A).
22
USSG § 2G2.2(b)(6)(D).
23
There is no assertion before us that the cache files images constitute
relevant conduct regardless of knowledge or possession. See USSG
§ 1B1.3.
UNITED STATES v. KUCHINSKI 18805
cally download that page into his Active Temporary Internet
Files, so that when the site is revisited the information will
come up much more quickly than it would have if it had not
been stored on the computer’s own hard drive. When the
Active Temporary Internet Files get too full, they spill excess
saved information into the Deleted Temporary Internet Files.
All of this goes on without any action (or even knowledge) of
the computer user. A sophisticated user might know all of
that, and might even access the files. But, “most sophisticated
—or unsophisticated users don’t even know they’re on their
computer.”24
Much of the above also appears in our discussion of this
area in Romm, 455 F.3d at 997-1001. There we also pointed
out that “the cache is a ‘system-protected’ area, which the
operating system tries to prevent users from accessing by dis-
playing a warning that access involves an ‘unsafe’ system-
command.” Id. at 998. We also noted that a user, who knows
what he is doing, can go forward and get access to the cache
files anyway. Id. In the case at hand, there was no evidence
that Kuchinski was sophisticated, that he tried to get access to
the cache files, or that he even knew of the existence of the
cache files.
There is no question that the child pornography images
were found on the computer’s hard drive and that Kuchinski
possessed the computer itself. Also, there is no doubt that he
had accessed the web page that had those images somewhere
upon it, whether he actually saw the images or not. What is
in question is whether it makes a difference that, as far as this
record shows, Kuchinski had no knowledge of the images that
were simply in the cache files. It does.
[12] While we have not confronted this precise issue, we
have come quite close. In Romm, 455 F.3d at 995-96, the evi-
24
When asked about this statement, the government expert, IRS Agent
Michael Mayott, said: “That is a fair statement, sir.”
18806 UNITED STATES v. KUCHINSKI
dence demonstrated that the defendant knew about the cache
files and had actually taken steps to access and delete them.
On appeal, he conceded knowledge, and contested dominion
and control, but we rejected his arguments. Id. at 997-98. In
so doing, we opined that “to possess the images in the cache,
the defendant must, at a minimum, know that the unlawful
images are stored on a disk or other tangible material in his
possession.” Id. at 1000. We relied upon a case wherein the
Tenth Circuit Court of Appeals had declared that the defen-
dant was properly found guilty where he knew that child por-
nography images would be sent to his “browser cache file and
thus saved on his hard drive.” Tucker, 305 F.3d at 1204. As
the court put it: “Tucker, however, intentionally sought out
and viewed child pornography knowing that the images would
be saved on his computer. Tucker may have wished that his
Web browser did not automatically cache viewed images on
his computer’s hard drive, but he concedes he knew the web
browser was doing so.” Id. at 1205.
We were also at some pains to distinguish Romm’s situa-
tion from one where it could be argued that “the cache is an
area of memory and disk space available to the browser soft-
ware, not to the computer user.” United States v. Gourde, 440
F.3d 1065, 1082 (9th Cir. 2006) (en banc) (Kleinfeld, J., dis-
senting). In Romm, 455 F.3d at 1001, we noted that we were
confronting a different situation because Romm did have both
knowledge of and access to his cache files.
[13] Where a defendant lacks knowledge about the cache
files, and concomitantly lacks access to and control over those
files, it is not proper to charge him with possession and con-
trol of the child pornography images located in those files,
without some other indication of dominion and control over
the images. To do so turns abysmal ignorance into knowledge
and a less than valetudinarian grasp into dominion and con-
trol.
[14] Therefore, on this record it was not proper to consider
the cache file images when Kuchinski’s offense level for
UNITED STATES v. KUCHINSKI 18807
Guideline purposes was calculated. As a result, the Guideline
range was miscalculated, and we must vacate the sentence and
remand. See United States v. Cantrell, 433 F.3d 1269, 1280
(9th Cir. 2006).
CONCLUSION
Kuchinski makes many daedalian arguments about his con-
viction and sentence. We reject most of them, but we do agree
that he was sentenced in error when child pornography
images in his cache files, which he neither controlled nor even
knew the existence of, were used to calculate his Guideline
range.
AFFIRMED as to the determination of guilt. VACATED
and REMANDED as to judgment and sentence.