United States v. Eric Streng ( 2015 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
SEP 16 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 13-50412
Plaintiff - Appellee, D.C. No. 2:12-cr-01148-PA-1
v.
MEMORANDUM*
ERIC STRENG, aka Puppielove6,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
Percy Anderson, District Judge, Presiding
Argued and Submitted September 2, 2015
Pasadena, California
Before: GRABER, RAWLINSON, and WATFORD, Circuit Judges.
1. The district court did not abuse its discretion by applying the
vulnerable-victim enhancement pursuant to U.S.S.G. § 3A1.1(b)(1). The court
properly found, under the circumstances surrounding Eric Streng’s crime, that
younger children were members of a particularly vulnerable class due to their age
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Page 2 of 3
and status. Streng argues that younger children are not particularly vulnerable
when there has been no charge of production, but we have squarely rejected that
contention in the past. See United States v. Lynn, 636 F.3d 1127, 1138–39 (9th
Cir. 2011); United States v. Holt, 510 F.3d 1007, 1011–12 (9th Cir. 2007). The
court correctly found, based on Streng’s statements, that he knew or should have
known of the younger children’s unusual vulnerability. Streng admitted to federal
agents that he possessed “quite a bit” of graphic content portraying children five to
ten years old and younger.
2. The district court did not commit procedural error in sentencing Streng to
180 months in prison. Although the court did not explicitly state at the sentencing
hearing that it used the 240-month statutory maximum as a departure point, that
figure was included in the pre-sentence report, which the court adopted. Streng has
provided nothing to support his allegation that the court actually used the
Sentencing Guidelines range of 324–405 months as the point of departure when
calculating the sentence. Nor has Streng established that the court was unaware
that it could depart from the child pornography Guidelines for policy reasons. Not
only was the court aware that it could depart from the Guidelines for policy
reasons, it ultimately imposed a sentence that was significantly below both the
Guidelines range and the statutory maximum.
Page 3 of 3
The court also did not commit procedural error in sentencing Streng to a
lifetime term of supervised release. The court determined that a life term was
sufficient but not greater than necessary after considering the materials submitted
by both parties, listening to argument over the course of three different hearings,
and discussing the need to protect children as well as the public. See United States
v. Daniels, 541 F.3d 915, 922 (9th Cir. 2008).
3. As the government has conceded, Condition 14 of Streng’s term of
supervised release must be construed to exclude non-pornographic, sexually
explicit depictions of adults, pursuant to this court’s decision in United States v.
Gnirke, 775 F.3d 1155, 1166–67 (9th Cir. 2015). Limited in that manner,
imposition of Condition 14 was permissible here. This condition is not an
unusually serious infringement of liberty akin to compelled antipsychotic drug
treatment, see United States v. Williams, 356 F.3d 1045, 1055 (9th Cir. 2004), or
mandatory penile plethysmograph testing, see United States v. Weber, 451 F.3d
552, 563 (9th Cir. 2006). Thus, the district court did not need to articulate explicit
reasons on the record justifying the imposition of Condition 14. See United States
v. Stoterau, 524 F.3d 988, 1006 (9th Cir. 2008).
AFFIRMED.