United States v. Albert Hernandez, Jr., 894 F.3d 1104

Hernandez, a high-school and club softball coach, engaged in a sexual relationship with N.C., a 17-year-old player, and exchanged sexually explicit photos via password-protected phone app.
Hernandez produced photos of sexual activity involving himself and N.C. and transmitted those images to N.C.; police obtained the phone and images after N.C.’s father found the phone.
A jury convicted Hernandez of sexual exploitation of a child (18 U.S.C. § 2251); he was acquitted on certain transporting counts and sentenced to 284 months after several Guidelines enhancements and denial of acceptance-of-responsibility.
On prior appeal the Ninth Circuit remanded for the district court to reconsider application of the two-level distribution enhancement in U.S.S.G. § 2G2.1(b)(3) in light of Roybal; the district court reaffirmed the enhancement.
The Ninth Circuit panel affirmed that the transmission of illicit images to the minor depicted in them constitutes "distribution" under § 2G2.1(b)(3), but vacated the sentence and remanded for resentencing because the district court appeared to penalize Hernandez for exercising his right to go to trial.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether transmitting illicit images to the minor depicted constitutes "distribution" under U.S.S.G. § 2G2.1(b)(3)	Government: the Guidelines' definition of "distribution" is broad and covers transfer to the victim depicted	Hernandez: "Distribution" requires sharing with a third party; sending only to the victim is not distribution	Held: Transmission to the minor depicted is "distribution" under the Guideline definition (affirmed)
Whether the sentence (denial of acceptance/length) was improperly influenced by defendant's decision to go to trial	Hernandez: district court penalized him for exercising Sixth Amendment right to trial, improperly withholding leniency/increasing sentence	Government/District Ct: sentencing discretion; lack of visible pre-trial contrition and victim impact justified the sentence	Held: District court’s statements indicate it may have penalized Hernandez for going to trial; sentencing vacated and limited remand ordered for clarification/resentencing

United States v. Roybal, 737 F.3d 621 (9th Cir. 2013) (permitting printing copies by a minor qualified as "distribution")
United States v. Hecht, 470 F.3d 177 (4th Cir. 2006) (observing the term "any" in the Guidelines' distribution definition is broad)
United States v. Grzybowicz, 747 F.3d 1296 (11th Cir. 2014) (interpreting § 2G2.1 application note as broadly defining "distribution")
United States v. Watt, 910 F.2d 587 (9th Cir. 1990) (district court may not penalize defendant for exercising constitutional rights when denying acceptance-of-responsibility)
United States v. Sitton, 968 F.2d 947 (9th Cir. 1992) (remand appropriate to clarify whether denial of reduction was based impermissibly on trial decision)
United States v. Ramos-Medina, 706 F.3d 932 (9th Cir. 2013) (defendant's decision to contest guilt cannot be held against him in sentencing)
United States v. Broxmeyer, 699 F.3d 265 (2d Cir. 2012) (discussing lack of remorse and abuse of position to exploit minors; cited in dissent)