United States v. Albert Hernandez, Jr.

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 13-10428

Plaintiff-Appellee,

D.C. No.

v. 2:12-cr-00254-

JCM-PAL-1

ALBERT SILVA HERNANDEZ, JR.,

Defendant-Appellant. OPINION

Appeal from the United States District Court

for the District of Nevada

James C. Mahan, District Judge, Presiding

Argued and Submitted March 23, 2016

San Francisco, California

Filed July 10, 2018

Before: M. Margaret McKeown, * Johnnie B. Rawlinson,

and Mary H. Murguia, Circuit Judges.

Opinion by Judge McKeown;

Dissent by Judge Rawlinson

*

Judge M. Margaret McKeown was drawn to replace Judge Alex

Kozinski, who retired after oral argument but before this opinion was

published.

2 UNITED STATES V. HERNANDEZ

SUMMARY **

Criminal Law

The panel affirmed in part and vacated in part a sentence

for sexual exploitation of a child, and issued a limited

remand for resentencing.

The panel affirmed the district court’s determination that

the distribution-of-pornography enhancement set forth in

U.S.S.G. § 2G2.1(b)(3) applies when the perpetrator creates

an illicit image of a minor victim and shares it only with the

victim.

The panel issued a limited remand for resentencing

because the record suggests that the district court penalized

the defendant by increasing his sentence based on his

decision to exercise his Sixth Amendment right to go to trial.

Judge Rawlinson dissented from the portion of the

majority opinion concluding that the district judge

impermissibly “punished” the defendant by tethering his

sentence to the exercise of his constitutional right to have his

guilt determined by a jury.

**

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

COUNSEL

Amy B. Cleary (argued) and Alina M. Shell, Assistant

Federal Public Defenders; Rene L. Valladares, Federal

Public Defender; Office of the Federal Public Defender, Las

Vegas, Nevada; for Defendant-Appellant.

Adam M. Flake (argued), Assistant United States Attorney;

Elizabeth O. White, Appellate Chief; United States

Attorney’s Office, Las Vegas, Nevada; for Plaintiff-

Appellee.

OPINION

McKEOWN, Circuit Judge:

This appeal requires us to consider whether the

distribution of pornography enhancement set forth in United

States Sentencing Guidelines (“U.S.S.G.”) § 2G2.1(b)(3)

applies where a perpetrator creates an illicit image of a minor

victim and shares it only with the victim herself, rather than

with a third party. We hold that such conduct constitutes

“distribution” as that term is defined in the Sentencing

Guidelines and accompanying commentary, and we

therefore affirm the distribution enhancement imposed by

the district court on Albert Silva Hernandez, Jr. However,

because the record suggests that the district court penalized

Hernandez by increasing his sentence based on his decision

to exercise his Sixth Amendment right to go to trial, we issue

a limited remand for resentencing.

I. Background

Hernandez coached softball at Silverado High School in

Las Vegas, Nevada, and for a club softball team of girls aged

4 UNITED STATES V. HERNANDEZ

eighteen years and younger. Hernandez met N.C., 1 who was

17 years old and a minor under federal law, when she joined

his club softball team. Because N.C. was playing a new

position, Hernandez provided her with extra coaching

sessions to improve her softball skills. After several months,

the coach-player relationship turned sexual.

In the course of their relationship, N.C. and Hernandez

exchanged photographs using a password-protected cellular

phone application that limited access of the photos sent to

only N.C. and Hernandez. N.C. took sexually explicit

photographs of herself with her mobile phone, often at

Hernandez’s direction, and sent the photographs to

Hernandez’s mobile phone. Hernandez took sexually

explicit photographs of himself on his mobile phone and, at

times at N.C.’s direction, sent those photographs to N.C. on

her mobile phone. Hernandez also took photos of himself

and N.C. engaged in sexual activity together, and later sent

those photos to N.C. via his mobile phone.

The relationship between Hernandez and N.C. came to

light when N.C. inadvertently called home while engaged in

sexual activities with Hernandez. N.C.’s father retrieved her

mobile phone and delivered it to the police.

After sexually explicit photographs and text messages

were recovered from N.C.’s mobile phone, Hernandez was

charged with eight counts of violating 18 U.S.C. §§ 2251(a),

(e) (sexual exploitation of a child) and three counts of

violating 18 U.S.C. §§ 2252A(a)(1), (b) (transporting child

pornography). Following a jury trial, Hernandez was

convicted of the sexual exploitation counts and acquitted of

1

The minor victim is referred to by her initials to protect her

identity.

UNITED STATES V. HERNANDEZ 5

the transporting counts. After applying several

enhancements and denying a reduction for acceptance of

responsibility, the district court sentenced Hernandez to

284 months’ imprisonment.

II. Procedural History

This is Hernandez’s second round before this court. In

the first appeal, we rejected Hernandez’s arguments “that the

government impermissibly changed its theory of prosecution

during rebuttal argument” and that application of

enhancements for sexual contact and abuse of trust

constituted impermissible “double counting.” United States

v. Hernandez, 604 F. App’x 621, 622 (9th Cir. 2015)

(unpublished). We remanded to the district court to

reconsider application of the distribution enhancement set

forth in U.S.S.G. § 2G2.1(b)(3) in light of our decision in

United States v. Roybal, 737 F.3d 621 (9th Cir. 2013). Id. at

622. The district court was “to consider in the first instance

whether the distribution enhancement may be applied when

the defendant does not distribute the image to a third party.”

Id. We deferred consideration of “the reasonableness of the

sentence imposed pending the district court’s consideration

of the remanded issue.” Id. Following supplemental

briefing and a hearing on remand, the district court

concluded in light of Roybal that “the [distribution]

enhancement should apply in this case.”

III. Analysis

A. Applicability of U.S.S.G. § 2G2.1(b)(3)

Resolution of this case turns in part on what it means to

“distribute” child pornography under U.S.S.G.

§ 2G2.1(b)(3), which provides for a two-level sentencing

6 UNITED STATES V. HERNANDEZ

enhancement “[i]f the offense involved distribution.” 2 Id.

We review de novo a district court’s interpretation of the

Sentencing Guidelines. United States v. Lloyd, 807 F.3d

1128, 1172 (9th Cir. 2015).

The government contends that the term “distribution” is

broad enough to encompass the transfer of illicit

pornographic images solely to the victim or victims depicted

in the images themselves. By contrast, Hernandez argues

that “distribution” occurs only if such images are shared with

a third party.

Application note 1 in Sentencing Guideline 2G2.1

provides a specific definition for “distribution” for

sentencing enhancement purposes:

“‘Distribution’ means any act, including

possession with intent to distribute,

production, transmission, advertisement, and

transportation, related to the transfer of

material involving the sexual exploitation of

a minor. Accordingly, distribution includes

posting material involving the sexual

exploitation of a minor on a website for

public viewing but does not include the mere

solicitation of such material by a defendant.”

U.S.S.G. § 2G2.1, cmt. n.1.

Under this definition, Hernandez’s conduct qualified as

“distribution.” Hernandez took photos of himself and the

minor N.C. engaged in sexual activity, and later transmitted

2

The 2012 edition of the Guidelines Manual was used to calculate

Hernandez’s sentence. All references in this opinion are to that edition.

UNITED STATES V. HERNANDEZ 7

those images via his cell phone to N.C. In doing so,

Hernandez committed an “act . . . related to the transfer of

material involving the sexual exploitation of a minor.” See

U.S.S.G. § 2G2.1, cmt. n.1. He also engaged in

“transmission . . . related to the transfer of material involving

the sexual exploitation of a minor.” Id. The conclusion that

Hernandez engaged in “distribution” follows directly from

the text of the definition in the Guidelines.

In Roybal, we addressed a scenario involving the

application of a sentencing enhancement for “distribution”

of child pornography. See 737 F.3d at 622. Roybal

permitted an eleven-year-old child to “print copies of child

pornography stored on [Roybal’s] computer” to create a

“book” of illicit pornographic images. Id. at 623–24.

Following Roybal’s guilty plea to one count of receiving

child pornography, the district court “applied a six-level

sentencing enhancement under U.S.S.G. § 2G2.2(b)(3)(D)”

based on its conclusion that Roybal’s act “qualified as

‘distribution.’” Id. at 622. We affirmed. Id. at 624–25.

Interpreting the meaning of “distribution,” we focused

on the broad definition set forth in Guideline § 2G2.2 and its

commentary: “any act, including . . . transmission . . . ,

related to the transfer of material involving the sexual

exploitation of a minor.” Roybal, 737 F.3d at 624 (emphasis

added). Although we declined to decide whether the act of

“showing” illicit materials to a minor, standing alone, was

sufficient to constitute “distribution,” we were clear that

permitting the victim to print copies of computer-stored

child pornography “qualifie[d] as ‘distribution.’” Id.

Printing out materials in this way was “certainly ‘related to

the transfer of material involving the sexual exploitation of

a minor.’” Id.

8 UNITED STATES V. HERNANDEZ

Hernandez contends Roybal is inapplicable because it

addressed a different guideline provision—U.S.S.G.

§ 2G2.2(b)(3)(D) as opposed to the guideline section we

address in this appeal—U.S.S.G. § 2G2.1(b)(3). But this

argument ignores that the definition of “distribution” is

identical for both guideline provisions. Compare U.S.S.G.

§ 2G2.2(b)(3)(D), cmt. n.1 with U.S.S.G. § 2G2.1(b)(3),

cmt. n.1. The definition includes the broad phrase “any act

. . . related to the transfer of” sexually explicit materials,

which encompasses Hernandez’s conduct here. See

U.S.S.G. §§ 2G2.1(b)(3), 2G2.2(b)(3)(D) (emphasis added).

As the Fourth Circuit has noted, “[t]he term ‘any’ at the

outset of the first sentence of the definition of ‘distribution’

in Application Note 1 [of the Sentencing Guidelines] ‘is a

term of great breadth.’” See United States v. Hecht, 470 F.3d

177, 182–83 (4th Cir. 2006) (citation omitted). In a different

context, we also have recognized the expansive breadth of

the term “any.” See Hertzberg v. Dignity Partners, Inc.,

191 F.3d 1076, 1080 (9th Cir. 1999) (explaining that “‘any’

means ‘one, no matter what one’; ‘ALL’; ‘one or more

discriminately from all those of a kind’”).

The phrase “related to” as it appears in the definition of

“distribution” evokes similar breadth. See U.S.S.G.

§ 2G2.1, cmt. n.1; United States v. Grzybowicz, 747 F.3d

1296, 1311–12 (11th Cir. 2014) (interpreting application

note 1 in U.S.S.G. § 2G2.1 as “broadly defining

‘distribution’”). Applying the definition to this case, we

hold that the transfer of illicit pornographic images to a

minor victim depicted in the images constitutes

“distribution” within the meaning of Guideline

§ 2G2.1(b)(3).

Hernandez’s remaining arguments are not persuasive.

Hernandez’s claim that “[o]ther courts have already held

UNITED STATES V. HERNANDEZ 9

transmitting images to oneself does not constitute

distribution” is beside the point. See Grzybowicz, 747 F.3d

at 1309; United States v. Merrill, 578 F. Supp. 2d 1144, 1150

(N.D. Iowa 2008). Hernandez did not transmit the

pornographic images only to himself; he transmitted them to

the minor victim. There is no conflict between Grzybowicz

and Merrill—reasoning that the transfer of illicit images to

oneself alone does not constitute “distribution”—and our

holding here—that the transfer of illicit images to the minor

victim depicted in the images constitutes “distribution.”

Hernandez also argues that “[d]istribution has

consistently been interpreted to require distribution or

attempted distribution to third parties.” However, none of

the cases Hernandez cites support this narrow reading. See,

e.g., United States v. Carani, 492 F.3d 867, 869–70, 875–76

(7th Cir. 2007) (defendant made child pornography videos

available for others to access and download through a file-

sharing program on his computer); United States v. Clawson,

408 F.3d 556, 557–58 (8th Cir. 2005) (defendant made disks

containing child pornography available to a minor by placing

them in a closet in the minor’s house); United States v.

Probel, 214 F.3d 1285, 1287–91 (11th Cir. 2000) (defendant

sent child pornography to a recipient over the internet).

Although all of these cases affirmed the application of an

enhancement for “distribution,” none of them considered

whether such an enhancement applies only if a defendant

transmits illicit pornographic materials to a third party.

Instead, what all of the cases have in common is that a

defendant engaged in an “act . . . related to” the “transfer” of

illicit, sexually explicit material involving minors. See, e.g.,

U.S.S.G. § 2G2.1, cmt. n.1. The lesson learned from these

cases is that there are myriad methods to produce, transmit,

share, and exchange sexually explicit material.

10 UNITED STATES V. HERNANDEZ

Neither the definition for “distribution” in the Guidelines

nor the case law supports the interpretation of the sentencing

enhancement that Hernandez urges us to adopt here. We

affirm the district court’s determination that the distribution

enhancement under U.S.S.G. § 2G2.1(b)(3) applies when

the illicit pornographic images are transferred to a minor

victim depicted in the images.

B. Basis for Imposition of Sentence

In the first appeal, we deferred consideration of “the

reasonableness of the sentence imposed pending the district

court’s consideration of the remanded issue.” Hernandez,

604 F. App’x at 622. We must defer that ultimate issue again

and remand because the district court appears to have

increased Hernandez’s sentence or withheld a reduction for

acceptance of responsibility based on Hernandez’s decision

to go to trial. Our review must await the district court’s

clarification of the basis for the sentence. Although not well

articulated, we view Hernandez’s challenge as both

procedural and substantive. See Gall v. United States,

552 U.S. 38, 49–51 (2007).

The Supreme Court has repeatedly emphasized that “[t]o

punish a person because he has done what the law plainly

allows him to do is a due process violation ‘of the most basic

sort.’” United States v. Goodwin, 457 U.S. 368, 372 (1982)

(quoting Bordenkircher v. Hayes, 434 U.S. 357, 363 (1978)).

We have consistently echoed this principle, including in

the context where a district court withholds a reduction for

acceptance of responsibility. In United States v. Watt, we

warned that “a sentencing court cannot consider against a

defendant any constitutionally protected conduct.” 910 F.2d

587, 592 (9th Cir. 1990), abrogated on other grounds by

United States v. Anderson, 942 F.2d 606 (9th Cir. 1991). In

UNITED STATES V. HERNANDEZ 11

refusing to apply a two-level reduction for acceptance of

responsibility, the district court “noted that, while Watt

manifested his responsibility to the probation officer, he did

so only after he was caught red-handed on a serious offense

in which he was facing extremely heavy charges . . . .” Id.

at 589 (internal quotation marks omitted). We vacated and

remanded, explaining that “[p]enalizing a defendant for

failing to provide evidence against himself or [refusing] to

make incriminating statements violates his constitutionally

protected rights.” Id. at 593.

We provided a more nuanced explanation of this

sentencing hazard in United States v. Sitton, reiterating that

“the district court may deny [a sentencing] reduction because

of a lack of contrition despite the increased costs imposed

upon the defendant’s choice to remain silent or to proceed to

trial, but may not deny the reduction because of that choice

in spite of other manifestations of sincere contrition.”

968 F.2d 947, 962 (9th Cir. 1992) (emphasis added).

Remand was appropriate in Sitton so that the district court

could clarify whether the reasons underlying its denial of a

downward reduction were consistent with the defendant’s

constitutional rights. Id. at 962–63. More recently, in

United States v. Ramos-Medina, we once again observed that

a “defendant’s right to contest his guilt before a jury is

protected by the Constitution, and his decision to do so

cannot be held against him.” 706 F.3d 932, 940 (9th Cir.

2013) (internal quotation marks and citation omitted).

This rule is also well settled in our sister circuits. In

United States v. Saunders, the Seventh Circuit declared it

“well established under the so-called unconstitutional

conditions doctrine that a defendant may not be subjected to

more severe punishment for exercising his or her

constitutional right to stand trial.” 973 F.2d 1354, 1362 (7th

12 UNITED STATES V. HERNANDEZ

Cir. 1992); see also United States v. Frost, 914 F.2d 756, 774

(6th Cir. 1990) (observing that “it is improper for a district

judge to penalize a defendant for exercising his

constitutional right to plead not guilty and go to trial, no

matter how overwhelming the evidence of his guilt”)

(internal quotation marks and citation omitted).

Taken together, these decisions reflect the fundamental

principle that for “an agent of the State to pursue a course of

action whose objective is to penalize a person’s reliance on

his legal rights is patently unconstitutional.” Wayte v.

United States, 470 U.S. 598, 630 (1985) (internal quotation

marks and citation omitted).

With these principles in mind, our review of the

sentencing transcript leaves us discomfited that the district

court penalized Hernandez for his assertion of protected

Sixth Amendment rights. The district court emphasized

Hernandez’s decision to go to trial five separate times during

the sentencing hearing. The court first stated that “it would

mean something if [Hernandez] took responsibility before

the trial.” The court then repeated that “contrition means

something when it happens before trial.” The court went on,

stating “I have never had a defendant – there have been one

or two maybe – after being found guilty, who didn’t feel

contrition . . . everybody feels contrition now. Now, when

they are looking at spending time in prison, everybody feels

remorse for what they did.”

Still further, the court continued: “[W]hat I look for is

somebody who feels remorse before the trial, before you put

this young girl through the – through the agony of testifying,

having to testify to what went on, and then identify pictures

of herself, personal pictures. So, I don’t see – I don’t see

much remorse there, Mr. Hernandez.” This comment

revealed the court’s dim view of Hernandez’s right “to be

UNITED STATES V. HERNANDEZ 13

confronted with the witnesses against him.” U.S. Const.

amend. VI.

Finally, just before the district court imposed

Hernandez’s sentence, it declared: “You decided to roll the

dice, and it came up snake eyes. You didn’t think she’d

testify, and she did. You went – you wanted to go to trial,

so you went to trial. And Probation rightly recommends

327 months for that.”

This last statement was of particular significance,

coming directly before the court handed down the 284-

month sentence. Deciding “to roll the dice” could only refer

to Hernandez’s decision to go to trial—a right enshrined in

the constitution and guaranteed to him by the Sixth

Amendment. U.S. Const. amend. VI. That the dice “came

up snake eyes”—Hernandez was convicted by the jury—

while true, is no reason standing alone to impose a harsher

sentence, or to withhold a reduction for acceptance of

responsibility.

The district court’s statements run headlong into our

precedent “that a judge cannot rely upon the fact that a

defendant refuses to plead guilty and insists on his right to

trial as the basis for denying an acceptance of responsibility

adjustment.” United States v. Ochoa-Gaytan, 265 F.3d 837,

842 (9th Cir. 2001) (internal quotation marks and citation

omitted). In recognition of this principle, we have

acknowledged that “a defendant who contests his factual

guilt at trial may, under some circumstances, be entitled to

such an adjustment.” United States v. Mohrbacher, 182 F.3d

1041, 1052 (9th Cir. 1999). We recognize that sometimes

there can be a fine line between putting on a defense at trial,

and expressing contrition at sentencing. But this is not a

binary, “either/or” proposition as suggested by the district

court.

14 UNITED STATES V. HERNANDEZ

Critically here, the district court’s comments regarding

Hernandez’s decision to go to trial comprised virtually the

entirety of the explanation for the sentence. It does not

appear that the court “based its final decision on the facts of

this case and on this particular record as a whole.” Ramos-

Medina, 706 F.3d at 941–42 (internal quotation marks

omitted); see also United States v. Rojas-Pedroza, 716 F.3d

1253, 1270 (9th Cir. 2013) (explaining that a “district court

does not commit reversible error . . . simply because it notes

the fact that the defendant went to trial, so long as the court

bases its final decision on the facts of the case and record as

a whole”). Indeed, the court did not reference any particular

“facts of this case” or “particular record” beyond

Hernandez’s exercise of his constitutional rights. Ramos-

Medina, 706 F.3d at 941–42.

To be sure, the district court made a passing reference to

the 18 U.S.C. § 3553(a) sentencing factors. The court

concluded the hearing by stating that the “midrange of the

guideline is sufficient considering all of the factors set forth

in 18 U.S.C. Section 3553(a) and meets the sentencing goals

as outlined by that statute.” But reciting this boiler-plate

statement immediately after chastising Hernandez for going

to trial, and without any explanation, does not cure the

infirmities in the district court’s justification for the sentence

imposed. The court did not specify which factors it

considered, nor is it apparent how the court may have

applied the factors to the facts of Hernandez’s case, or

whether it considered any facts at all beyond Hernandez’s

decision to exercise his constitutional rights. On this record,

UNITED STATES V. HERNANDEZ 15

it is impossible to avoid the centrality of the comments about

Hernandez’s decision to go to trial. 3

Enhancing a sentence solely because a defendant

chooses to go to trial risks chilling future criminal

defendants from exercising their constitutional rights. And

imposing a penalty for asserting a constitutional right

heightens the risk that future defendants will plead guilty not

to accept responsibility, but to escape the sentencing court’s

wrath.

Although most federal criminal cases result in guilty

pleas, 4 the Sixth Amendment right to trial remains an

important safeguard to defendants who insist on their

innocence. Permitting courts to impose harsher sentences on

those few defendants who do go to trial could in practice

restrict the exercise of the right to those with unusual risk

tolerance—or uncommon courage.

3

The dissent compares the present case to United States v.

Broxmeyer, 699 F.3d 265 (2d Cir. 2012). It notes the district court’s

concern in Broxmeyer with the defendant’s “disturbing lack of remorse,”

and equates the Broxmeyer district court’s concerns to those of the

district court in this case. The underlying facts of Broxmeyer, involving

numerous victims and forceful assault, and the defendant’s clear

comments demonstrating that he did not have remorse and did not take

his conduct seriously, are distinguishable from the present case.

4

Ninety-one percent of criminal defendants in cases terminated in

federal district courts in 2014 were convicted as the result of a guilty

plea, six percent were dismissed, and three percent received a jury or

bench trial. See US Department of Justice Bureau of Justice Statistics,

“Federal Justice Statistics, 2013–14,” available at

https://www.bjs.gov/content/pub/pdf/fjs1314.pdf (Last accessed July 2,

2018).

16 UNITED STATES V. HERNANDEZ

Hence, we vacate the sentence and order a limited

remand to permit the district court to “adequately explain the

chosen sentence to allow for meaningful appellate review

and to promote the perception of fair sentencing.” Gall,

552 U.S. at 50.

AFFIRMED in part, VACATED in part, and

REMANDED.

RAWLINSON, Circuit Judge, dissenting in part:

I respectfully dissent from that portion of the majority

opinion concluding that the district court judge

impermissibly “punished” the defendant by tethering his

sentence to the exercise of his constitutional right to have his

guilt determined by a jury.

Hernandez takes issue with the following remarks from

the district court:

[W]hat I look for is somebody who feels

remorse before the trial, before you put this

young girl through the—through the agony of

testifying, having to testify to what went on,

and then identifying pictures of herself,

personal pictures. So I don’t see much

remorse there . . .

Respectfully, the majority opinion conflates the

procedural analysis and the substantive reasonableness

analysis that govern sentencing proceedings. Sitting en

banc, we clarified that when reviewing a sentence on appeal,

“we first consider whether the district court committed

procedural error.” United States v. Carty, 520 F.3d 984, 993

UNITED STATES V. HERNANDEZ 17

(9th Cir. 2008) (en banc). We delineated the following as

examples of procedural error: failing to calculate the

Guidelines Range or calculating the range incorrectly;

treating the Guidelines as mandatory rather than advisory;

failing to consider the factors set forth in 18 U.S.C.

§ 3553(a); imposing a sentence based on clearly erroneous

facts; or failing to give an adequate explanation for the

sentence imposed. See id.

It is only after we consider whether the district court

procedurally erred that we consider the substantive

reasonableness of the sentence. See id. (“On appeal, we first

consider whether the district court committed significant

procedural error, then we consider the substantive

reasonableness of the sentence.”) (citation omitted)

(emphasis added).

Hernandez did not assert that the district court committed

the procedural errors delineated in Carty. Rather, in his

Opening Brief, Hernandez characterized the district court’s

reference to his exercise of his right to a jury trial as resulting

in a substantively unreasonable sentence, not a procedurally

erroneous one. See Appellant’s Opening Brief, pp. 20–24.

Hernandez challenged the district court’s enhancements that

affected the Guidelines Range calculation separately, as

provided in Carty. See id., pp. 13–20; pp. 17–20

(referencing an incorrect calculation of the Guidelines

Range).

The cases cited in the majority opinion reinforce that any

analysis regarding Hernandez’s argument that he was

punished for going to trial belongs in the procedural error

consideration as articulated in Carty, 520 F.3d at 993, i.e.,

calculating the Guidelines Range incorrectly. With the

exception of a case from the Sixth Circuit that, like the

majority opinion, fails to distinguish between the procedural

18 UNITED STATES V. HERNANDEZ

error and substantive unreasonableness analyses 1, the cases

discussed by the majority all involve the reduction for

acceptance of responsibility, a reduction that is pivotal to

calculation of the Guidelines Range, a prototypical

procedural concern. See Carty, 520 F.3d at 993; see also

United States v. Watt, 910 F.2d 587, 592 (9th Cir. 1990)

(analyzing Watts’ constitutional claim in the context of a

reduction for acceptance of responsibility); United States v.

Sitton, 965 F.2d 947, 962 (9th Cir. 1992) (same); United

States v. Saunders, 973 F.2d 1354, 1361–62 (9th Cir. 1992)

(same); United States v. Ochoa-Gaytan, 265 F.3d 837, 842

(9th Cir. 2001) (same); United States v. Ramos Medina,

706 F.3d 932, 941 (9th Cir. 2013), as amended (noting, in

addressing the defendant’s argument that he was penalized

for going to trial when the court denied a reduction for

acceptance of responsibility, that “we continue to review

whether the district court correctly calculated the Guidelines

range as the first step in our review of criminal sentences)

(citation omitted) (emphasis added). 2

In United States v. Rojas-Pedroza, 716 F.3d 1253 (9th

Cir. 2013), one of the more recent cases cited by the

majority, we analyzed separately as an asserted procedural

error the defendant’s argument that the court denied an

acceptance of responsibility reduction based on his decision

to go to trial. See id. at 1270–71. After determining that

there was no procedural error, we then proceeded to address

1

United States v. Frost, 914 F.2d 756, 774 (6th Cir. 1990). This

analysis is not consistent with our en banc ruling in Carty.

2

The Supreme Court case cited, United States v. Goodwin, 457 U.S.

368, 372 (1982), did not involve a sentencing claim, and its analysis of

the vindictive prosecution claim presented is of limited relevance to this

appeal.

UNITED STATES V. HERNANDEZ 19

the substantive reasonableness of the sentence imposed. See

id. at 1271.

The majority seeks to disguise its conflation of the

standards by “view[ing] Hernandez’s [not well articulated]

challenge as both procedural and substantive.” Majority

Opinion, p. 10. The problem with the attempted disguise is

that it is diametrically opposed to the assertions of error

articulated by Hernandez in his Opening Brief.

Additionally, the majority fails to address the fact that the

cases cited in support of its holding address the reduction for

acceptance of responsibility, a procedural concern.

Because Hernandez made no argument that the

Guideline Range was affected, because the record does not

reflect the existence of any other cognizable procedural

error, and because Hernandez couched his claim as one of

substantive unreasonableness, I proceed to analysis of the

argument actually made by Hernandez. See Gall v. United

States, 552 U.S. 38, 56 (2007) (proceeding to substantive

reasonableness analysis when no procedural error

discerned). When reviewing a sentence for substantive

unreasonableness, we do not analyze discrete legal issues.

Rather, the sentence is reviewed as a whole. See Carty,

520 F.3d at 993.

Although perhaps the district court could have phrased

its reasoning more artfully, in context the remarks are not a

sufficient basis to support a determination of substantive

unreasonableness. It is apparent that the primary focus of

the court’s concern was Hernandez’s manipulation of the

victim and lack of remorse. I agree with the Second Circuit

that these were appropriate concerns. See United States v.

Broxmeyer, 699 F.3d 265, 291 (2d Cir. 2012). The Second

Circuit observed that Broxmeyer, who was also a coach,

took advantage of his position “by using the close physical

20 UNITED STATES V. HERNANDEZ

contact he was . . . afforded to . . . teenage girls—access that

the parents and community likely would not have afforded

the average male of his age—to corrupt the girls’ emerging

sexual awareness for his own gratification.” (citation,

footnote reference and internal quotation marks omitted).

As with the district court in this case, the district court in

Broxmeyer described the defendant as displaying “a

disturbing lack of remorse for, or even appreciation of, the

seriousness of the totality of his conduct.” Id. at 295.

The Second Circuit viewed Broxmeyer’s lack of remorse

as “a circumstance that further expanded the range of

substantively reasonable sentences . . .” Id. I cannot

conclude that the district court erred in this case by reaching

a similar conclusion. As with the defendant in Broxmeyer,

Hernandez has continued to insist that the relationship was

“consensual,” despite the minor’s lack of ability to legally

consent, and despite the victim’s statement to the court that

she was manipulated by Hernandez. See id. I agree with the

Second Circuit that it was Hernandez’s responsibility “by

virtue of his position as . . . coach” to act as a role model for

the teenagers. Instead, Hernandez, similar to Broxmeyer,

“turned [N.C.’s] immaturity and lack of judgment to his own

advantage.” Id. 3

In sum, Hernandez has not met his burden of establishing

that his sentence was substantively unreasonable. A

determination of substantive unreasonableness is reserved

for the rarest of cases. See United States v. Ressam, 679 F.3d

1069, 1088 (9th Cir. 2012), as amended. I agree with the

Second Circuit that a showing of substantive

3

Despite the majority’s attempt to distinguish Broxmeyer, the facts

in the two cases are remarkably similar. Contrary to the majority’s

suggestion, one victim is enough to support the sentence imposed.

UNITED STATES V. HERNANDEZ 21

unreasonableness is made only if the sentence imposed is “so

shockingly high, shockingly low, or otherwise

unsupportable as a matter of law that allowing [it] to stand

would damage the administration of justice.” Broxmeyer,

699 F.3d at 289 (citation and internal quotation marks

omitted). This sentence imposed by the district court at the

lower end of the correctly calculated guideline sentencing

range is not that case. Because the majority opinion deviates

sharply from the analysis articulated in Carty, because its

analysis does not track the arguments made by Hernandez,

and because the sentence imposed was substantively

reasonable, I respectfully dissent from that portion of the

majority opinion concluding that the district court

committed reversible error during sentencing.

I agree with the district court that the term “distribution”

in U.S.S.G. § 2G2.1(b)(3) is broad enough to encompass

transmission of the sexually explicit images to the victim

depicted in the images. Our decision in Roybal supports that

determination.

I would affirm the district court’s judgment in its

entirety.