United States v. Agustin Hernandez , 795 F.3d 1159 ( 2015 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 12-50585
Plaintiff-Appellee,
D.C. No.
v. 2:11-cr-00257-
ODW-1
AGUSTIN CAMARENA HERNANDEZ,
AKA Hernandez Agustin Camarena,
Jr., AKA Agustin Hernandez, OPINION
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
Otis D. Wright II, District Judge, Presiding
Argued and Submitted
January 5, 2015—Pasadena, California
Filed August 3, 2015
Before: Alex Kozinski, William A. Fletcher,
and John B. Owens, Circuit Judges.
Opinion by Judge W. Fletcher
2 UNITED STATES V. HERNANDEZ
SUMMARY*
Criminal Law
The panel remanded with an instruction to amend the
written judgment to conform with the oral pronouncement of
the sentence, and otherwise affirmed the sentence, in a case
in which the defendant pled guilty to two counts of
possession of child pornography.
The panel held that U.S.S.G. § 2G2.2(b)(3)(B), which
provides for a five-level enhancement for offenders who
distribute child pornography “for the receipt, or expectation
of receipt, of a thing of value,” applies to a child pornography
distributor who anticipates receiving something of value in
return for his distribution, even in the absence of a specific
agreement providing for reciprocity. The panel held that on
the facts of this case, there is sufficient evidence that the
defendant expected that he would receive child pornography
in return for sharing his videos and images on a peer-to-peer
file-sharing network, and that the district court appropriately
applied the enhancement.
The panel found that the district court did not
impermissibly rely on unreliable allegations that the
defendant abused his daughters when it determined his
sentence.
The panel rejected the defendant’s argument that in
determining his sentence the district court inappropriately
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
UNITED STATES V. HERNANDEZ 3
relied on a conclusion that the defendant was not “curable” or
“treatable.”
The panel rejected the defendant’s argument that the
district court improperly imposed an enhancement under
U.S.S.G. § 2G2.2(b)(6), based on use of a computer to
distribute the child pornography, after having rejected that
enhancement on policy grounds.
The panel rejected the defendant’s argument that the
sentence is substantively unreasonable.
COUNSEL
Gia Kim (argued), Deputy Federal Public Defender, Los
Angeles, California, for Defendant-Appellant.
Elizabeth Ryunsoo Yang (argued), Assistant United States
Attorney, Los Angeles, California, for Plaintiff-Appellee.
OPINION
W. FLETCHER, Circuit Judge:
Agustin Camarena Hernandez used a peer-to-peer file-
sharing network to share and download child pornography.
Hernandez shared some of his child pornography with two
undercover FBI Special Agents. After agents searched
Hernandez’s residence and confiscated his computer, they
discovered over 11,000 videos and images of child
pornography. Many involved girls under the age of twelve,
and some as young as nine months old.
4 UNITED STATES V. HERNANDEZ
Hernandez pled guilty to two counts of possession of
child pornography. He was thereafter convicted in a bench
trial of two counts of distribution of child pornography. The
district court sentenced Hernandez to 262 months in prison
and lifetime supervised release. On appeal, Hernandez
challenges his sentence. We have jurisdiction under
28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). We affirm in
almost all respects.
I. Background
Hernandez amassed a large collection of over 11,000
child pornography videos and images, some of which he
shared using a GigaTribe account. GigaTribe is a peer-to-
peer file-sharing network that enables its users to share digital
files (image, video, or audio) with other users via the Internet.
Under GigaTribe’s default setting, a user’s files are not
available to others. To make files available, a GigaTribe user
must affirmatively designate certain folders on his computer
as “shared” or “non-shared.” A GigaTribe user controls
access to “shared” files by inviting other users to join his
network of “friends,” or by accepting “friend” requests.
Hernandez’s GigaTribe username was “pthcforyou,”
which stood for “preteen hardcore for you.” Using his
account, Hernandez downloaded video and image files of
child pornography and made these files available to his
GigaTribe friends in a folder designated for sharing.
Hernandez understood that the videos and images he
intentionally downloaded into his shared folder would be
available for viewing and downloading by other users.
Using his “pthcforyou” username, Hernandez “friended”
two GigaTribe users who were, in fact, undercover FBI
UNITED STATES V. HERNANDEZ 5
Special Agents. On December 13, 2009, a San Diego FBI
Agent accepted Hernandez’s friend request. The next day,
the agent searched Hernandez’s folder and saw files that
appeared to contain child pornography. The agent
downloaded 1 video and 36 images of suspected child
pornography. Two of the images showed girls who were at
most eight years old engaged in sexual conduct.
While the agent was downloading these files, Hernandez
sent him a message to complain that the agent was “leeching”
him by accessing his files and not providing files in return:
pthcforyou: hi
pthcforyou: Bell!!
pthcforyou: hi
pthcforyou: Bell!!
[Agent]: hi
pthcforyou: hey man were is ur files
[Agent]: sorry about that I try to keep
leechers out . . . will post some
now
pthcforyou: thx ur lecching me a lot
On October 13, 2010, an undercover FBI Special Agent
in Phoenix “friended” Hernandez. The Phoenix agent
downloaded 44 image files from Hernandez’s shared folder.
These images included three depicting girls under the age of
6 UNITED STATES V. HERNANDEZ
about eight engaged in sexually explicit conduct, including
oral sex and vaginal/anal penetration.
On February 8, 2011, agents searched Hernandez’s
residence and recovered a laptop computer and an external
hard drive. In an interview conducted on the day of the
search, Hernandez admitted that he used GigaTribe and that
his username was “pthcforyou,” that he owned and
exclusively used the laptop, that he downloaded child
pornography, and that child pornography would be found on
his laptop. Forensic analysis of the computer and external
hard drive showed that Hernandez possessed over 11,000
videos and images of child pornography. Many of these
videos and images involved girls under the age of twelve, and
some as young as nine months old.
The United States charged Hernandez with two counts of
possession of child pornography and two counts of
distribution of child pornography. Hernandez pled guilty to
both possession counts. In a bench trial on the distribution
charges, Hernandez contended that use of peer-to-peer
networks to share child pornography did not satisfy the
“distribution” requirement of the statute. See 18 U.S.C.
§ 2252A(a)(2)(A) (“[a]ny person who . . . knowingly receives
or distributes . . . any child pornography” shall be fined and
imprisoned not less than five years and not more than twenty
years). Relying on Hernandez’s “affirmative actions in
installing, inviting and accepting GigaTribe users to his
computer and allowing them to download child pornography
from his ‘shared’ folder,” the district court stated that it had
“little difficulty in concluding that [Hernandez] distributed
child pornography in the sense of having ‘delivered,’
‘transferred,’ ‘dispersed,’ or ‘dispensed’ it to others.” The
UNITED STATES V. HERNANDEZ 7
district court sentenced Hernandez to 262 months in prison
and lifetime supervised release.
On appeal, Hernandez challenges only his sentence.
II. Standard of Review
“Only a procedurally erroneous or substantively
unreasonable sentence will be set aside.” United States v.
Henderson, 649 F.3d 955, 958 (9th Cir. 2011). We “review
the district court’s interpretation of the Sentencing Guidelines
de novo, its application of the Guidelines to the facts for
abuse of discretion, and its factual findings for clear error.”
Id. “Assuming that the district court’s sentencing decision is
procedurally sound, we then consider the substantive
reasonableness of the sentence imposed under an
abuse-of-discretion standard.” Id.
III. Discussion
Hernandez argues that the district court should not have
applied the five-level sentencing enhancement applicable to
offenders who distribute child pornography “for the receipt,
or expectation of receipt, of a thing of value.” U.S.S.G.
§ 2G2.2(b)(3)(B). Hernandez further argues that the district
court made a number of procedural errors; that, as a
substantive matter, his sentence was too long; and that his
written sentence should be amended to conform to the
sentence pronounced orally. Finally, he asks, in the event of
a remand for resentencing, that we reassign to a different
district judge.
8 UNITED STATES V. HERNANDEZ
A. “Expectation” Under U.S.S.G. § 2G2.2(b)(3)(B)
Hernandez was convicted of distribution of child
pornography in violation of § 2252A(a)(2)(A). A defendant
convicted under this provision is eligible for a sentencing
enhancement under § 2G2.2(b)(3) of the Sentencing
Guidelines. Section 2G2.2(b)(3)(B) instructs the district
court to impose a five-level enhancement “[i]f the offense
involved . . . [d]istribution for the receipt, or expectation of
receipt, of a thing of value, but not for pecuniary gain.” The
district court applied the five-level enhancement, concluding
that Hernandez had an “expectation” of receiving something
of value.
We agree with the district court and hold that
§ 2G2.2(b)(3)(B) applies to a child pornography distributor
who anticipates receiving something of value in return for his
distribution, even in the absence of a specific agreement
providing for reciprocity. On the facts of this case, there is
sufficient evidence that Hernandez expected that he would
receive child pornography in return for sharing his videos and
images on GigaTribe.
We have not previously interpreted § 2G2.2(b)(3)(B)’s
requirement that a distributor of child pornography expect to
receive a thing of value in return. But we do not write on a
blank slate. Every other circuit to consider this question,
except possibly the Eleventh Circuit, has agreed that “a
defendant expects to receive a thing of value under U.S.S.G.
§ 2G2.2(b)(3)(B) when he distributes child pornography in
anticipation of, or while reasonably believing in the
possibility of, the receipt of a thing of value.” United States
v. Geiner, 498 F.3d 1104, 1110 (10th Cir. 2007). See also
United States v. Groce, 784 F.3d 291, 294–95 (5th Cir. 2015)
UNITED STATES V. HERNANDEZ 9
(finding that a defendant distributed child pornography for a
thing of value by knowingly using peer-to-peer file sharing
software and thereby agreeing “to distribute the child
pornography on his computer in exchange for additional child
pornography”); United States v. Whited, 539 F.3d 693, 699
(7th Cir. 2008) (“‘[E]xpectation of receipt’ under
§ 2G2.2(b)(3)(B) does not require an explicit agreement or
precise bargain . . . . Distribution of child pornography in the
reasonable anticipation or reasonable belief of receiving a
thing of value is enough for the enhancement to apply.”);
United States v. Griffin, 482 F.3d 1008, 1012–13 (8th Cir.
2007) (applying § 2G2.2(b)(3)(B) to a distributor who shared
child pornography on a peer-to-peer network, despite the
absence of any quid pro quo agreements); United States v.
Maneri, 353 F.3d 165, 168 (2d Cir. 2003) (“[T]he provision
is implicated if the distributor expects — rather than just
hopes — to receive a thing of value . . . in return for
distributing child pornography.”); United States v. Vadnais,
667 F.3d 1206, 1209 (11th Cir. 2012) (“There must be some
other evidence, whether direct or circumstantial, that a
defendant reasonably believed that he would receive
something of value by making his child pornography files
available for distribution through a peer-to-peer network.”).
But see United States v. Spriggs, 666 F.3d 1284, 1288 (11th
Cir. 2012) (“Without evidence that [the distributor] and
another user conditioned their decisions to share their illicit
image collections on a return promise to share files, we
cannot conclude there was a transaction under which [the
distributor] expected to receive more pornography.”).
We agree with our sister circuits. The enhancement
applies to anyone who distributes child pornography “for the
receipt, or expectation of receipt, of a thing of value.”
U.S.S.G. § 2G2.2(b)(3)(B) (emphasis added). As the Second
10 UNITED STATES V. HERNANDEZ
Circuit noted, “the key word in this case is ‘expectation.’”
Maneri, 353 F.3d at 169. Although there is no statutory
definition, expectation
has been defined as “the act or action of
looking forward: anticipation.” Webster’s
Third New International Dictionary 799
(1976); accord Black’s Law Dictionary 598
(7th ed. 1999). Accordingly, based on the
ordinary meaning of the word “expectation,”
[the] enhancement applies when a defendant
distributes child pornography in anticipation
of, or while reasonably believing in the
possibility of, the receipt of a thing of value.
Id. We agree. The enhancement applies to any offender who
anticipates getting a thing of value in return for distributing
child pornography, even in the absence of a quid pro quo
agreement. While the distributor’s behavior “might be
characterized by a specific agreement or understanding, it
need not embrace an agreement or understanding to give rise
to an ‘expectation’” within the meaning of § 2G2.2(b)(3)(B).
Id. at 170.
Despite what appears to be the plain meaning of
“expectation,” Hernandez relies on Application Note 1 to
§ 2G2.2(b)(3)(B) to argue that the enhancement only applies
where there is a quid pro quo agreement between a child
pornography distributor and a recipient. Application Note 1
defines “[d]istribution for the receipt, or expectation of
receipt, of a thing of value, but not for pecuniary gain” as:
any transaction, including bartering or other
in-kind transaction, that is conducted for a
UNITED STATES V. HERNANDEZ 11
thing of value, but not for profit. “Thing of
value” means anything of valuable
consideration. For example, in a case
involving the bartering of child pornographic
material, the “thing of value” is the child
pornographic material received in exchange
for other child pornographic material bartered
in consideration for the material received.
(Emphasis added.)
Hernandez argues that the Application Note understands
“expectation” as requiring a return promise of valuable
consideration. The critical word in the Application Note is
“transaction.” For Hernandez’s argument to succeed, he must
persuade us that a “transaction” is limited to quid pro quo
agreements. That is, he must persuade us that “transaction”
does not include the action of a distributor who allows
another person to access his child pornography files when he
merely expects to receive something in return. The Second
Circuit rejected this argument in Maneri. The court held that
“a ‘transaction’ does not necessarily include a specific
agreement.” 353 F.3d at 169. The word also “includes a
‘communicative activity . . . involving two parties . . .
reciprocally affecting or influencing each other.’” Id.
(quoting Webster’s Third New International Dictionary 2425
(1986)) (omissions in original). We agree with the Second
Circuit that the concept of “affecting or influencing each
other” is a more inclusive concept than entering into a quid
pro quo agreement, and we conclude that it covers the
conduct in this case. Although the Application Note refers to
bartering and other in-kind transactions, these are “examples
of conduct to which [the subsection] applies” and are “not
determinative of the subsection’s full reach.” Id. at 170.
12 UNITED STATES V. HERNANDEZ
“The word ‘including’ before the examples indicates that any
transaction — so long as it involves the ‘expectation’ of the
‘receipt’ of a ‘thing of value’ — suffices to trigger the
subsection’s enhancement.” Id.
Sharing child pornography files on a peer-to-peer network
does not in and of itself demonstrate that the distributor
expects he will get something of value in return. “Although
a defendant may share files on a file-sharing network with the
expectation of receiving other users’ files in return, this is not
necessarily true in every case.” Geiner, 498 F.3d at 1111
(emphasis added). An offender’s use of a peer-to-peer
sharing network may be considered, but it is insufficient,
standing alone, to demonstrate that an expectation existed.
See, e.g., Vadnais, 667 F.3d at 1209 (“[S]imply using a peer-
to-peer program is not itself sufficient to trigger the five-level
enhancement.”); United States v. Durham, 618 F.3d 921, 931
(8th Cir. 2010) (“[W]e have explicitly rejected any suggestion
we automatically apply a distribution enhancement based
merely on a defendant’s use of a file-sharing program.
Rather, the enhancement must be decided on a case-by-case
basis depending on the facts at hand.” (internal citation
omitted)); Geiner, 498 F.3d at 1111 (“To apply the
enhancement to every defendant who shares files on a
peer-to-peer file-sharing network would be to disregard the
connection between distribution and ‘thing of value’ in the
provision’s requirement that ‘distribution [be] for the receipt,
or expectation of receipt, of a thing of value.’” (alteration in
original) (quoting U.S.S.G. § 2G2.2(b)(3)(B))); cf. Groce,
784 F.3d at 295 (holding that “knowing use of peer-to-peer
file sharing software triggers § 2G2.2(b)(3)(B)”). The
sentencing judge must look for additional indications that the
offender had a genuine expectation that he would receive
UNITED STATES V. HERNANDEZ 13
something of value in return for distributing the child
pornography at issue.
In this case, there is specific evidence that Hernandez
shared his collection of child pornography with an undercover
FBI agent based on his expectation that he would receive
child pornography in return. When the agent in San Diego
downloaded Hernandez’s files but did not reciprocate,
Hernandez complained that the agent was “leeching” him.
The exchange makes clear Hernandez’s expectation that the
agent would reciprocate. When the agent wrote, “sorry about
that I try to keep leechers out . . . will post some now,”
Hernandez responded, “thx ur lecching me a lot.” We agree
with the district court’s factual finding that this exchange
demonstrated both Hernandez’s “intent to receive similar
images from those he is giving access to” and his efforts at
“policing” that goal. We conclude that this exchange is
sufficient to show that Hernandez had an expectation of
receiving something of value in return for allowing access to
his child pornography files, and that the district court
appropriately applied the five-level enhancement of
§ 2G2.2(b)(3)(B).
B. Procedural Challenges
“It would be procedural error for a district court to fail to
calculate — or to calculate incorrectly — the Guidelines
range; . . . to choose a sentence based on clearly erroneous
facts; or to fail adequately to explain the sentence selected,
including any deviation from the Guidelines range.” United
States v. Carty, 520 F.3d 984, 993 (9th Cir. 2008) (en banc).
Similarly, a district court abuses its discretion whenever it
relies on materially false or unreliable information at
14 UNITED STATES V. HERNANDEZ
sentencing. United States v. Hanna, 49 F.3d 572, 577 (9th
Cir. 1995).
1. Unreliable Information
Hernandez argues that the district court improperly relied
on unproven allegations that Hernandez sexually abused his
daughters when it determined the length of his sentence.
Although it is a somewhat close question, we disagree that
the district court so relied.
Early in the sentencing hearing, the district judge
indicated to Hernandez’s counsel that if he looked at the
pornographic videos, as counsel was requesting, he would
impose a longer sentence. He stated, “[I]f you want me to
take a look at this material to see whether or not some of
these enhancements are warranted, I will do that. But if they
are what I suspect they are, [a sentence at the] low end [of the
Guidelines range] is off the table because of his conduct with
his own child.” A short time later, the court appeared to
change its view about the relevance of any alleged sexual
conduct with that child, saying to Hernandez’s counsel:
All right. Listen, I agree with what you said
about the daughter. We have an allegation
made by her to authorities, but the authorities
have done nothing. So I agree with you.
Based upon that, we can’t use that to
somehow enhance Mr. Hernandez’s
punishment.
Finally, at the end of the sentencing hearing, the court stated
that “there is evidence to suggest that Mr. Hernandez has
previously attempted to sexually abuse his own children,” but
UNITED STATES V. HERNANDEZ 15
then went on to say that “[h]e has, however, been removed
from the lives of his own children, and, thus, if he ever
presented or posed a threat to them, he no longer does so.”
(Emphasis added.)
Although the district court recognized that there was
evidence “to suggest” that Hernandez had “previously
attempted to sexually abuse his own children,” it also stated
that it could not use a mere allegation of abuse “to somehow
enhance Mr. Hernandez’s punishment.” And the court made
clear, by using the word “if,” that the sexual abuse of
Hernandez’s children had not been established, and that, even
if Hernandez had posed a threat to them, he no longer did.
We therefore find that the district court did not impermissibly
rely on the unreliable allegations that Hernandez abused his
daughters when it determined Hernandez’s sentence.
2. Incurable Condition
Hernandez argues that in determining his sentence the
district court relied on its personal belief that Hernandez
suffered from an incurable condition. We do not believe that
the district court inappropriately relied on a conclusion that
Hernandez was not “curable” or “treatable.”
During the sentencing hearing, the court stated, “I think
other children are at risk. I haven’t heard anyone tell me that
this stuff is curable.” The court also noted that Hernandez
had “an overwhelming collection of material. This wasn’t
one or two or a dozen or two or a hundred or two. He has got
really quite a serious condition, and I think lifetime
supervision is going to be appropriate.” Based on the nature
and quantity of child pornography found on Hernandez’s
16 UNITED STATES V. HERNANDEZ
computer, the district court did not believe that Hernandez
could be treated:
The material that the court has been exposed
to for sometime now does suggest that this is
not a treatable condition. The best that can be
hoped for is that one will learn to control his
conduct, but I do believe that lifetime
supervision is appropriate in these cases,
particularly when we are dealing with a
condition that is as serious as Mr.
Hernandez’s is.
Despite these statements, this case is different from
United States v. Cossey, 632 F.3d 82 (2d Cir. 2011) (per
curiam), upon which Hernandez relies. In Cossey, the Second
Circuit reversed a sentence that depended on a district court’s
unsupported belief that possession of child pornography was
genetically determined. Two separate psychological reports
had concluded that the defendant was “at a low to moderate
risk to re-offend.” Id. at 87. The district court dismissed
these reports as “worthless,” stating “it did not ‘have a lot of
faith’” in the psychology and psychiatry professions; the
court proceeded to make its own predictions “as to the state
of the science of genetics ‘fifty years from now.’” Id. at
87–88. Based on its belief that proclivity to possess child
pornography was genetically determined, the court rejected
the conclusion reached in the two reports, stating, “You are
what you’re born with. And that’s the only explanation for
what I see here.” Id. at 87. The Second Circuit concluded
that it was “impermissible for the court to base its decision of
recidivism on its unsupported theory of genetics.” Id. at 88.
 UNITED STATES V. HERNANDEZ 17
We agree with the Second Circuit’s decision in Cossey,
but hold that it does not apply to the case now before us.
Some of the district court’s comments in this case do suggest
that a desire to possess and distribute child pornography is not
curable. But the district court never said, as the district court
said in Cossey, that Hernandez would be unable to control his
behavior. Indeed, the district court said quite the opposite.
As the passage from the sentencing hearing, quoted above,
makes clear, the district court accepted that it was possible for
someone like Hernandez to “learn to control his conduct,”
and he determined Hernandez’s sentence based on this view.
There were also no psychological reports to indicate, as in
Cossey, that Hernandez was at low to moderate risk to re-
offend. Instead, in this case, Hernandez possessed “an
overwhelming collection of material,” and even
acknowledged that he had fallen “into an addiction.” Finally,
unlike Cossey where the district court relied “nearly entirely”
on its unsupported predictions in sentencing, see id., here, the
district court’s sentencing decision depended on other,
substantial, case-specific evidence about Hernandez’s
addiction to child pornography. Given these differences, the
district court’s statements do not constitute reversible error.
3. Use of a Computer
Hernandez argues that the district court improperly
imposed a two-level enhancement based on his use of a
computer to distribute the child pornography. See U.S.S.G.
§ 2G2.2(b)(6) (“If the offense involved the use of a computer
. . . for the possession, transmission, receipt, or distribution of
the material, or for accessing with intent to view the material,
increase by 2 levels.”). Hernandez contends that the district
court imposed the enhancement even though it had already
rejected that enhancement on policy grounds.
18 UNITED STATES V. HERNANDEZ
That is not how we read the record. The district court
mentioned § 2G2.2(b)(6) only to ensure that the computations
in the Pre-Sentence Report were accurate. After confirming
the computations, the court rejected the two-level computer
enhancement, saying to Hernandez’s counsel, “I agree with
you about the computer.” The court noted it was not “bound”
by the child pornography guidelines and that it enjoyed
“extensive discretion in terms of fashioning what it deems to
be a reasonable sentence.” In this case, the court “fashioned
what it deems to be a reasonable sentence. It just so happens
that it is within the guidelines.” The court did not rely on
§ 2G2.2(b)(6) after rejecting it, and did not provide an
inconsistent explanation of the sentence.
C. Substantive Challenge
“A substantively reasonable sentence is one that is
‘sufficient, but not greater than necessary’ to accomplish
§ 3553(a)(2)’s sentencing goals.” United States v. Crowe,
563 F.3d 969, 977 n.16 (9th Cir. 2009) (quoting 18 U.S.C.
§ 3553(a)). At sentencing, the district court must consider
seven factors:
(1) the nature and circumstances of the
offense and the history and characteristics of
the defendant; (2) the need for the sentence
imposed; (3) the kinds of sentences available;
(4) the kinds of sentences and the sentencing
range established by the Sentencing
Guidelines; (5) pertinent policy statements
issued by the Sentencing Commission; (6) the
need to avoid unwarranted sentencing
disparities among defendants who have
similar criminal records and have been found
UNITED STATES V. HERNANDEZ 19
guilty of similar conduct; and (7) the need to
provide restitution to victims.
Id. at 977 n.15 (citing 18 U.S.C. § 3553(a)).
The district court sentenced Hernandez to 262 months in
prison, a sentence at the low end of the Guidelines but longer
than the government had recommended. Hernandez argues
that his sentence is longer than necessary “to protect the
public from further crimes of the defendant.” 18 U.S.C.
§ 3553(a)(2)(C). As the district court found, Hernandez
admitted to having a “problem” and “deriv[ing] sexual
pleasure from these child pornographic images and videos.
The sheer volume of Hernandez’s collection, approximately
11,000 images and videos supports a finding that Mr.
Hernandez has a sexual interest in children.” The district
court did not abuse its discretion in setting a sentence that
reflected this risk.
Hernandez points to shorter sentences that defendants
received in other child pornography cases, but those cases are
not comparable. Some of the defendants in those cases were
charged with possession or distribution of child pornography,
but not both. Hernandez also has not shown that these
defendants distributed child pornography in the expectation
of receiving something of value, or that they owned
collections of child pornography as large as his.
D. Discrepancy Between Oral and Written Sentence
Hernandez and the government agree that there are
discrepancies between the sentence that the district court
delivered orally and the sentence in the written judgment.
They also agree the oral pronouncement controls. There are
20 UNITED STATES V. HERNANDEZ
three discrepancies. First, the oral sentence requires
Hernandez, upon release, to participate in outpatient
substance abuse treatment and counseling. The written
judgment requires him, in addition, to participate in
“urinalysis, breath, and/or sweat patch testing,” and to
“abstain from using illicit drugs and alcohol during the period
of supervision.” Second, the oral sentence requires
Hernandez to pay a special assessment. The written judgment
requires him, in addition, to pay restitution. Third, the oral
sentence prohibits Hernandez, upon release, from living
anywhere with a “direct view” of school yards or places
primarily used by persons under the age of 18. The written
judgment instead prohibits him from living within two
thousand feet of any such place.
“When there is a discrepancy between an unambiguous
oral pronouncement of a sentence and the written judgment,
the oral pronouncement controls.” United States v. Fifield,
432 F.3d 1056, 1059 n.3 (9th Cir. 2005). As we have done in
the past, “[w]e remand so that the district court can make the
written judgment consistent with the oral pronouncement.”
United States v. Hicks, 997 F.2d 594, 597 (9th Cir. 1993).
E. Reassignment
Because we remand only for the district court to make
ministerial changes to the judgment and we otherwise affirm,
Hernandez’s request for assignment to a different judge for
resentencing is moot.
UNITED STATES V. HERNANDEZ 21
Conclusion
We REMAND with an instruction to amend the written
judgment to conform with the oral pronouncement of the
sentence. We otherwise AFFIRM.