United States v. Fernando Esparza , 668 F. App'x 721 ( 2016 )

FILED
NOT FOR PUBLICATION
AUG 25 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 15-50439
Plaintiff-Appellee, D.C. No.
5:05-cr-00056-VAP-1
v.
FERNANDO ESPARZA, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
Virginia A. Phillips, Chief Judge, Presiding
Argued and Submitted August 3, 2016
Pasadena, California
Before: O’SCANNLAIN, RAWLINSON, and CALLAHAN, Circuit Judges.
Petitioner Fernando Esparza appeals his sentence for distributing child
pornography in violation of 18 U.S.C. § 2252A(a)(2)(A). The facts of this case are
known to the parties, and we do not repeat them here. We have jurisdiction under
28 U.S.C. § 1291.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
I
Esparza argues the district court erred in applying a five-level enhancement
under U.S.S.G. § 2G2.2(b)(6)(D). The district court applied such enhancement
after determining that Esparza’s possession of roughly 1,150 images of child
pornography was “part of the same course of conduct or common scheme or plan”
as his distribution offense. See U.S.S.G. § 1B1.3(a)(2). We are satisfied that the
enhancement was supported by the record.
For conduct to be “part of the same course of conduct or common scheme or
plan” within the meaning of Guidelines § 1B1.3(a)(2), “[t]here must be ‘sufficient
similarity and temporal proximity to reasonably suggest that repeated instances of
criminal behavior constitute a pattern of criminal conduct.’” United States v.
Hahn, 960 F.2d 903, 910 (9th Cir. 1992) (quoting United States v. Santiago, 906
F.2d 867, 872 (2d Cir. 1990)).
The district court correctly reasoned that distribution and possession of child
pornography are “tightly connected,” since “you cannot distribute images unless,
of course, you possess them.” Circumstances specific to Esparza further indicate
that his possession and distribution were part of the same course of criminal
conduct. Esparza’s possession of the 1,150 images occurred contemporaneously
with his distribution, and the images were co-mingled among those he distributed
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on the floppy disks in his home–facts suggesting that Esparza’s possession and
distribution overlapped in time as well as purpose.
II
Esparza next argues that the court’s imposed sentence violated both the law
of the case and the rule of mandate doctrines. We disagree.
When considering the factors delineated in 18 U.S.C. § 3553, the district
court stated in passing that Esparza “distributed pornography to young girls” and
that he engaged in chats “with young girls.” Esparza argues that these references
violated the law of the case and rule of mandate doctrines since we had already
held that the application of a seven-level enhancement was invalid because the
record contained no verification that any of Esparza’s conversation partners “was
an actual minor.” United States v. Esparza, 310 F. App’x 80, 82 (9th Cir. 2009).
But the district court did not seek to impose a seven-level enhancement in defiance
of our previous ruling. Rather, it accepted that ruling and simply made a
determination in response to our later instructions that it consider whether §
1B1.3(a)(2) applied. See United States v. Esparza, 489 F. App’x 204 (9th Cir.
2012).
III
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Esparza next argues that a condition of his supervised release—Condition
11—raises First Amendment concerns that require remand. Again, we disagree.
This Court has examined a similar condition and concluded that although the
condition’s language raised First Amendment concerns, remand was not necessary
because the condition could be construed to avoid the problem. See United States
v. Gnirke, 775 F.3d 1155, 1166 (9th Cir. 2015). Although the district court did not
explicitly state that Condition 11 was limited to adult pornography, reading the
condition as so limited makes sense, in part because the court imposed an
additional condition—Condition 12—as restricting access to child pornography.
Thus, we construe Condition 11 as only applying to “any materials with depictions
of ‘sexual explicit conduct’ involving adults, defined as explicit sexually
stimulating depictions of adult sexual conduct that are deemed inappropriate by
[Esparza’s] probation officer.” Gnirke, 775 F.3d at 1166.
IV
The district court’s judgment and sentence is
AFFIRMED
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