United States v. Agustin Hernandez
2015 U.S. App. LEXIS 13486
| 9th Cir. | 2015Background
- Defendant Agustin Hernandez used GigaTribe, a peer-to-peer file‑sharing network, under the username “pthcforyou” to share and download child pornography; forensic seizure showed over 11,000 images/videos (some involving children under 12 and infants).
- Two undercover FBI agents friended Hernandez and downloaded child‑pornography files from his shared folder; in one exchange Hernandez complained an agent was “leeching” (not reciprocating), indicating expectation of reciprocity.
- Hernandez pleaded guilty to two counts of possession and was convicted at bench trial on two counts of distribution of child pornography; district court sentenced him to 262 months imprisonment and lifetime supervised release.
- At sentencing the district court applied a five‑level enhancement under U.S.S.G. § 2G2.2(b)(3)(B) for distribution “for the receipt, or expectation of receipt, of a thing of value,” and imposed other conditions; Hernandez challenged the sentence on several procedural and substantive grounds.
- The Ninth Circuit affirmed the sentence except it remanded to correct discrepancies between the oral pronouncement and the written judgment so the written judgment conforms to the oral sentence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Applicability of § 2G2.2(b)(3)(B) enhancement for “expectation” of receipt of a thing of value | Gov’t: enhancement applies when distributor anticipates receiving something of value in return for distribution | Hernandez: enhancement requires a quid pro quo or specific agreement to exchange materials | Court: enhancement applies where distributor reasonably anticipates or expects receipt of a thing of value, even absent explicit quid pro quo; applied here based on the “leeching” exchange |
| Reliance on unproven allegations of child abuse at sentencing | Gov’t: district court did not rely impermissibly on unproven allegations | Hernandez: court relied on unreliable allegations about abusing his daughters to increase sentence | Court: did not impermissibly rely; judge explicitly said allegations were unproven and not used to enhance punishment |
| District court’s comments about defendant being “incurable” or untreatable | Gov’t: court’s view supported by quantity and nature of material and addiction evidence | Hernandez: court impermissibly based sentence on unsupported medical/genetic theory of incorrigibility (Cossey problem) | Court: remarks did not mirror Cossey; judge acknowledged possibility of control and relied on case‑specific evidence of addiction and massive collection |
| Use of computer enhancement (§2G2.2(b)(6)) after rejecting it | Gov’t: sentencing properly accounted for guidelines and the court exercised discretion | Hernandez: court imposed a computer enhancement after rejecting it on policy grounds | Court: no improper reliance; judge rejected the computer enhancement and did not base sentence on it |
Key Cases Cited
- United States v. Geiner, 498 F.3d 1104 (10th Cir.) (expectation standard applies when defendant anticipates receipt via file sharing)
- United States v. Groce, 784 F.3d 291 (5th Cir.) (peer‑to‑peer sharing supports expectation of receipt enhancement)
- United States v. Whited, 539 F.3d 693 (7th Cir.) (no explicit agreement required; reasonable anticipation suffices)
- United States v. Maneri, 353 F.3d 165 (2d Cir.) (expectation, not mere hope, triggers enhancement; “transaction” not limited to quid pro quo)
- United States v. Spriggs, 666 F.3d 1284 (11th Cir.) (requires evidence defendant reasonably believed reciprocity was conditioned on return promise)
- United States v. Cossey, 632 F.3d 82 (2d Cir.) (reversal where district court relied on unsupported theory of genetic incorrigibility)