United States v. Clay Serenbetz
690 F. App'x 962
| 9th Cir. | 2017Background
- Defendant Clay Serenbetz pleaded guilty to possession of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B) and was sentenced to 41 months custody and 20 years supervised release.
- The Sentencing Guidelines range was increased by 13 levels based on four enhancements: use of a computer (§ 2G2.2(b)(6)), images of prepubescent minors (§ 2G2.2(b)(2)), sadistic/masochistic or violent content (§ 2G2.2(b)(4)), and more than 600 images (§ 2G2.2(b)(7)(D)).
- Serenbetz did not object at sentencing to the three enhancements (prepubescent, sadistic/masochistic, >600 images), so the court reviewed those claims for plain error.
- The district court relied on specified paragraphs of the PSR, admissions made through counsel, and materials Serenbetz submitted in support of a variance to support the enhancements.
- The district court granted a downward variance from the Guidelines but imposed a custodial sentence; Serenbetz argued procedural and substantive unreasonableness and raised constitutional challenges to his sentence.
- The Ninth Circuit affirmed in part, vacated and remanded in part to clarify Special Condition 5 (narrowing prohibition on materials to permit collateral-attack materials and court-mandated treatment materials).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1. Validity of three Guidelines enhancements (prepubescent, sadistic/masochistic, >600 images) | Enhancements unsupported by record because district court relied on PSR material that was ordered stricken | Enhancements supported by clear and convincing evidence: PSR paragraphs, counsel admissions, and defendant’s submissions | No plain error; enhancements upheld |
| 2. Procedural error in sentencing (calculation, consideration, explanation, departure discretion) | District court failed to appreciate discretion to depart and erred procedurally | District court properly calculated range, considered arguments, granted downward departure, and sufficiently explained reasons | No procedural error; affirmed |
| 3. Substantive reasonableness of sentence | 41-month custody and 20-year supervised release unreasonable under § 3553(a) | Sentence reasonable and supported by record and sentencing factors | Sentence substantively reasonable; affirmed |
| 4. Special Condition 5 and constitutional challenges | Condition overly broad; constitutional claims to sentence | Narrowing requested so materials for collateral attack and treatment are permitted; constitutional claims meritless | Remanded to modify Special Condition 5 to clarify permitted materials; constitutional challenges rejected |
Key Cases Cited
- Gall v. United States, 552 U.S. 38 (2007) (sentencing review standard and deference to district courts)
- United States v. Holt, 510 F.3d 1007 (9th Cir. 2007) (application of § 2G2.2 enhancements and guideline interpretation)
- United States v. Hymas, 780 F.3d 1285 (9th Cir. 2015) (clear-and-convincing evidence standard for certain sentencing facts)
- United States v. Jordan, 256 F.3d 922 (9th Cir. 2001) (standards for sentencing fact findings)
- United States v. Ameline, 409 F.3d 1073 (9th Cir. 2005) (PSR reliance when defendant fails to object)
- United States v. Rearden, 349 F.3d 608 (9th Cir. 2003) (sadistic/masochistic content under § 2G2.2(b)(4))
- United States v. Hernandez-Hernandez, 431 F.3d 1212 (9th Cir. 2005) (admissions through counsel supporting enhancements)
- United States v. Henderson, 649 F.3d 955 (9th Cir. 2011) (district courts not required to vary from Guidelines on policy grounds)
- United States v. Cope, 527 F.3d 944 (9th Cir. 2008) (narrowing special conditions to allow materials for collateral attack and treatment)
- United States v. Treadwell, 593 F.3d 990 (9th Cir. 2010) (constitutional challenges to sentences rejected)