United States v. Hector Carreon

FILED
NOT FOR PUBLICATION DEC 03 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 14-50075
Plaintiff - Appellee, D.C. No. 3:12-cr-03419-JAH-1
v.
MEMORANDUM*
HECTOR MANUEL CARREON,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
John A. Houston, District Judge, Presiding
Argued and Submitted November 3, 2015
Pasadena, California
Before: SCHROEDER, PREGERSON, and FRIEDLAND, Circuit Judges.
Hector Manuel Carreon was convicted of production of child pornography in
violation of 18 U.S.C. § 2251(a); attempted production of child pornography in
violation of 18 U.S.C. § 2251(a); receipt of child pornography in violation of 18
U.S.C. § 2252(a)(2); and three counts of possession of child pornography in
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
violation of 18 U.S.C. § 2252(a)(4)(B). He appeals the district court’s denial of his
motion to suppress statements from an in-home interview, the sufficiency of the
evidence to support two of his convictions, and various aspects of his 50-year
sentence. We have jurisdiction pursuant to 28 U.S.C. § 1291 and we affirm.
1. Whether a defendant was “in custody” for purposes of Miranda is
reviewed de novo. United States v. Kim, 292 F.3d 969, 973 (9th Cir. 2002). The
voluntariness of statements to police is also reviewed de novo. United States v.
Haswood, 350 F.3d 1024, 1027 (9th Cir. 2003).
Even assuming that Carreon was in custody for purposes of Miranda or that
his statements were involuntary and the district court erred in concluding
otherwise, any error would be harmless—the admission of the statements did not
contribute to the verdict obtained. See United States v. Barnes, 713 F.3d 1200,
1207 (9th Cir. 2013) (per curiam).
The only arguably “incriminating” statements Carreon made during the in-
home interview were that he was the sole user of the relevant computers and that
he used file-sharing programs such as LimeWire. Other evidence elicited at trial,
however, established the same. Carreon’s wife testified that Carreon was the sole
user of the computers. Carreon’s convictions are based on self-recorded videos.
The video forming the basis for the receipt count was found in a “Limewire” folder
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within a user-created folder entitled “Hector Manuel Carreo” [sic]. As to the
possession counts, the illicit files were found in a “Shared” folder created by
LimeWire, within a user-created folder called “Hector.” The production and
attempted production convictions were based on self-recorded videos that Carreon
himself appeared in. His statements during the in-home interview were thus at
most cumulative of other evidence of guilt established at trial.
2. We review a claim of insufficient evidence de novo. United States v.
Stewart, 420 F.3d 1007, 1014 (9th Cir. 2005). “A conviction is supported by
sufficient evidence if, ‘viewing the evidence in the light most favorable to the
government, a rational trier of fact could conclude that the evidence was adequate
to prove guilt beyond a reasonable doubt.’” United States v. Whittemore, 776 F.3d
1074, 1078 (9th Cir. 2015) (quoting United States v. Barbosa, 906 F.2d 1366, 1368
(9th Cir. 1990)).
The “Made in China” and “Made in Tokyo” label evidence was sufficient to
support the jurisdiction element for counts 1 and 2. See United States v. Alvarez,
972 F.2d 1000, 1004 (9th Cir. 1992) (per curiam) (holding that an inscription on a
gun does not constitute hearsay and could be used by the government to show that
the gun had been manufactured in Spain), overruled on other grounds by
Kawashima v. Mukasey, 530 F.3d 1111, 1116 (9th Cir. 2008); United States v.
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Clawson, 831 F.2d 909, 913 (9th Cir. 1987) (holding that evidence of a gun’s
foreign manufacturer is sufficient to support a finding that the gun moved in
interstate commerce).
3. The 34-second video was sufficient evidence to support a conviction of
attempted production of child pornography. See 18 U.S.C. § 2251(a)
(criminalizing the use of a minor to engage in sexually explicit conduct for the
purposes of making a visual depiction of that conduct); 18 U.S.C.
§ 2256(2)(A)(iii), (v) (defining “sexually explicit conduct” to include
“masturbation” and “lascivious exhibition of the genitals . . . of any person.”).
4. The district court’s interpretation of the Sentencing Guidelines is
reviewed de novo; its application of the Guidelines to the facts of the case is
reviewed for abuse of discretion; and its factual findings are reviewed for clear
error. United States v. Vallejos, 742 F.3d 902, 905 (9th Cir. 2014).
Under the child pornography sentencing guidelines, “distribution” can be
found when the defendant knowingly “used a file-sharing program to download
child pornography that, whether knowingly or unknowingly, allowed others access
to those files.” Id. at 908. Carreon knowingly used the file-sharing program
LimeWire and did not present any evidence to suggest ignorance of how the
program worked. Thus, the district court did not err in applying a 2-level
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enhancement under U.S.S.G. § 2G2.3(b)(3)(F) for an offense involving
distribution. Likewise, the district court did not err in denying a 2-level reduction
under U.S.S.G. § 2G2.2(b)(1) for lack of intent to distribute. See id. at 908 n.5
(there is “presumed intent to distribute” when one uses a file-sharing program in
the manner previously described).
The district court also did not err when it calculated the offense level for the
grouped receipt and possession counts. See U.S.S.G. § 3D1.3, cmt. n. 3
(“Determine whether the specific offense characteristics . . . apply based upon the
combined offense behavior taken as a whole.” (emphasis added)).
It was not an abuse of discretion to apply a 5-level enhancement under
U.S.S.G. § 2G2.2(b)(5)(F) for a pattern of activity involving the sexual abuse or
exploitation of a minor because Carreon’s conduct fits squarely within the
Guideline note’s definition. See U.S.S.G. § 2G2.2, cmt. n. 1 (“‘Pattern of activity
involving the sexual abuse or exploitation of a minor’ means any combination of
two or more separate instances of the sexual abuse or sexual exploitation of a
minor by the defendant, whether or not the abuse or exploitation (A) occurred
during the course of the offense; (B) involved the same minor; or (C) resulted in a
conviction for such conduct.”). Application of this enhancement did not constitute
impermissible double counting because enhancements “may be triggered by the
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same conduct,” and “[a]bsent an instruction to the contrary . . . are to be applied
cumulatively.” U.S.S.G. § 1B1.1 cmt. n. 4(B); see also United States v. Smith, 719
F.3d 1120, 1123-24 (9th Cir. 2013). There is no Guideline instruction to avoid
double counting under U.S.S.G. § 2G2.2(b)(5), which appears to contemplate such
double counting by specifically citing 18 U.S.C. § 2251(a)—prohibiting
production of child pornography—as conduct within its purview, and by stating
that the enhancement will apply “whether or not the abuse or exploitation . . .
resulted in a conviction.” U.S.S.G. § 2G2.2, cmt. n.1.
5. Substantive reasonableness of a sentence is reviewed for abuse of
discretion. United States v. Cherer, 513 F.3d 1150, 1159 (9th Cir. 2008). We
cannot say that the district court abused its discretion in imposing a 50-year
sentence.
AFFIRMED.
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