NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

 v. 

JEFFREY EMSING BARD, AKA Jeffrey 

Bard, 

Defendant-Appellant.

No. 17-10471 

D.C. No. 

4:16-cr-01474-RM-JR-1 

MEMORANDUM*

Appeal from the United States District Court

for the District of Arizona

Rosemary Márquez, District Judge, Presiding

Submitted December 17, 2018**

San Francisco, California

Before: M. SMITH and NGUYEN, Circuit Judges, and RESTANI,*** Judge.

Jeffrey Emsing Bard appeals his sentence following his conviction for 

possession and distribution of child pornography. He challenges the district 

 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

** The panel unanimously concludes this case is suitable for decision 

without oral argument. See Fed. R. App. P. 34(a)(2).

*** The Honorable Jane A. Restani, Judge for the United States Court of 

International Trade, sitting by designation.

FILED

DEC 19 2018

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
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court’s application of certain adjustments under the Sentencing Guidelines

(“Guidelines”), as well as the imposition of lifetime supervision to follow his 

release. We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. 

§ 3742(a), and affirm the sentence.

1. The district court correctly started with the applicable Guidelines 

range under U.S.S.G. § 2G2.2 as “the initial benchmark” to aid its decision. See 

United States v. Henderson, 649 F.3d 955, 964 (9th Cir. 2011) (quoting Gall v. 

United States, 552 U.S. 38, 49 (2007)). As we have previously held, the

Guidelines for child pornography are not categorically unreasonable, despite a 

history of frequent congressional action. Id. And, critically, “district courts are not 

obligated to vary from the child pornography Guidelines on policy grounds if they 

do not have, in fact, a policy disagreement with them.” Id.

Similarly, the statistics cited by Bard do not call into question the framework 

of the various enhancements that applied in his case. We have noted the unique 

harm to victims of computer usage in these crimes, such as easing the retrieval, 

distribution, and perpetuation of child pornography via the digital medium. See 

United States v. Kiefer, 760 F.3d 926, 931 (9th Cir. 2014). By contrast, the 

number of images poses a distinct harm proportionate to culpability. See United 

States v. Acosta, 619 F.3d 956, 962 (8th Cir. 2010) (“[E]nhancing a defendant’s

sentence for the number of illegal items with which he was involved is a common 
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practice throughout the Guidelines and is not unreasonable.”). Despite the frequent 

imposition of both enhancements with these offenses, each serves a different 

purpose from the other and from the base offense, and are not “impermissible 

double counting.” See United States v. Gallegos, 613 F.3d 1211, 1216 (9th Cir. 

2010).

2. The district court correctly applied the various adjustments when 

calculating Bard’s sentence under the Guidelines. Bard pleaded guilty to 

“knowingly distribut[ing] the child pornography.” Accordingly, he was not 

eligible for a reduction under § 2G2.2(b)(1), which would have required that his 

conduct be limited to “receipt or solicitation.” For the same reason, the 

enhancement under § 2G2.2(b)(3)(F) applied because Bard “knowingly engaged in 

distribution.”

The district court properly rejected Bard’s request for a role reduction as a 

minor participant. The adjustment would require that Bard show he was 

“substantially less culpable than the average participant in the criminal activity,” § 

3B1.2, comment. (n.3(A)), and that “more than one participant was involved,” § 

3B1.2, comment. (n.2). But, as Bard acknowledged in his objections, “the only 

known assessors of the material were government agents,” who are explicitly 

excluded from this analysis. See U.S.S.G. § 3B1.1, comment. (n.1).

3. Bard’s sentence was not objectively unreasonable. After calculating 
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the Guidelines range of 151 to 188 months, the Court varied downward for a 

sentence of 108 months. District courts are not free to vary from the Guidelines

“simply based on an individualized determination that they yield an excessive 

sentence in a particular case.” Henderson, 649 F.3d at 963. Instead, the court 

carefully considered the § 3553(a) factors, as it was required to do, and varied 

substantially downward from the Guidelines sentence. Bard’s sentence, based on 

the nature and circumstances of the offense, his age, and his employment record, 

was not substantively unreasonable.

4. Finally, the district court did not abuse its discretion by imposing 

lifetime supervision. The court considered the comments Bard made to the court, 

as well as the findings of the sex offense specific evaluation. It concluded that 

Bard is “a long way from rehabilitation and from working on [his] rehabilitation.” 

In light of the Guidelines’ recommendation that supervised release be imposed for 

life for sexual offenses, U.S.S.G. § 5D1.2(b)(2), p.s., the district court did not 

abuse its discretion when it evaluated Bard’s case and imposed a term of 

supervision within the Guidelines recommendation.

AFFIRMED.