NOT FOR PUBLICATION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, CLER K U.S. COURT OF APPEAL S2

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. T he 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. 201 1 ) (quoting Gall v.
United States , 552 U.S. 38, 49 (2007)) . As we have prev iously held, the
Guidelines for child pornography are not categorically unreasonable, despite a history o f 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 fram ework 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 S tates 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. 2 010) (“[E]nhancing a defendant’s
sentence for the number o f illegal items with which he was involved is a common3

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 bas e 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 g uilty 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 th e same reason, the
enhancement unde r § 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 t han the average participant in the criminal activity,” §
3B1.2 , comment. (n.3(A)), and that “more than on e participant was invol ved,” § 3B1.2, comment. (n.2). B ut , as B ard 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 calculating4

the Guidelines range of 151 to 1 88 months, the Court varied downward for a
sentence of 108 months. D istrict court s 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 emplo yment record,

was not substantively unreasonable.
4. Finally, t he 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 eval uation

. 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 d istrict c ourt did not
abuse its discretion when it evaluated Bard’s case and imposed a term of supervision within the Guidelines recommendation

. AFFIRMED

.