737 F.3d 621
9th Cir.2013Background
- Roybal pled guilty to one count of receiving child pornography under 18 U.S.C. §2252A(a)(2).
- PSR claimed the victim was eleven, Roybal abused her over four months, and showed her pornography while providing alcohol.
- PSR recommended a six-level enhancement under §2G2.2(b)(3)(D) for distribution to a minor intended to persuade, induce, or coerce.
- At sentencing, victim testified Roybal showed pornography and groomed her, including a “book” of imagery created from his collection.
- District court overruled objections, applying the six-level enhancement and sentencing Roybal to 18 years in prison with lifetime supervised release; ordered sex-offender treatment with policies including physiological testing.
- Roybal appeals, arguing showing pornography cannot be “distribution”; the court also addresses penile plethysmograph testing as a condition of supervised release.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is showing pornography to a minor distribution under §2G2.2(b)(3)(D)? | Roybal did not distribute material. | Roybal argues distribution required more than showing. | Yes; the court held it qualifies under distribution when paired with printing copies from Roybal’s collection. |
| May penile plethysmograph testing be imposed without proper district-findings? | Roybal cannot be forced to undergo testing absent findings. | District court can impose with appropriate findings. | No; testing cannot be imposed without requisite on-the-record findings. |
Key Cases Cited
- United States v. Budziak, 697 F.3d 1105 (9th Cir. 2012) (printing copies from one's collection qualifies as distribution under §2G2.2)
- United States v. Weber, 451 F.3d 552 (9th Cir. 2006) (plethysmograph testing requires careful, on-the-record necessity analysis)
- Stinson v. United States, 508 U.S. 36 (1993) (interpretation of Guideline commentary is authoritative unless inconsistent with statute)
- United States v. Williams, 356 F.3d 1045 (9th Cir. 2004) (fw requirement for liberty interests in testing)
- Dyniewicz v. United States, 742 F.2d 484 (9th Cir. 1984) (affirming rulings upholding district court determinations)