NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

 Plaintiff - Appellee,

 v.

GREGORY PAUL AGUIRRE,

 Defendant - Appellant.

No. 14-10352

D.C. No. 2:10-cr-00445-MCE-1

MEMORANDUM*

Appeal from the United States District Court

for the Eastern District of California

Morrison C. England, Jr., Chief District Judge, Presiding

Argued and Submitted March 17, 2016

San Francisco, California

Before: NOONAN, GOULD, and FRIEDLAND, Circuit Judges.

Gregory Paul Aguirre pled guilty to and was convicted of distribution of 

child pornography. The district court sentenced Aguirre to a within-Guidelines 

sentence of 188 months in prison, plus 120 months of supervised release. Aguirre 

argues on appeal that the 188-month term of imprisonment is substantively 

unreasonable, and that two special conditions of supervised release should be 

 

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

except as provided by 9th Cir. R. 36-3.

FILED

APR 5 2016

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2

vacated. We affirm in part and vacate and remand in part. 

As to the term of imprisonment, Aguirre does not dispute that the Guidelines 

range was correctly calculated, nor does he argue that there was anything atypical 

about his case that should take it out of the Guidelines range. Instead, he argues 

that the Guidelines are themselves substantively unreasonable in light of a recent 

Sentencing Commission Report criticizing certain child pornography sentencing

enhancements. See United States Sentencing Comm’n, Report to Congress: 

Federal Child Pornography Offenses (Dec. 2012) (the “Commission Report”), 

available at http://www.ussc.gov/sites/default/files/pdf/news/congressionaltestimony-and-reports/sex-offense-topics/201212-federal-child-pornographyoffenses/Full_Report_to_Congress.pdf.

Although a district court “may vary from the child pornography Guidelines 

. . . based on policy disagreement with them, and not simply based on an 

individualized determination that they yield an excessive sentence in a particular 

case. . . . 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.” United States v. Henderson, 649 F.3d 955, 953-64 (9th Cir. 2011). 

Here, the district court considered the Commission Report but it concluded that a 
3

Guidelines sentence was appropriate in this case. The district court was under no 

obligation to concur with the Commission Report’s criticisms and prescriptions 

and did not err in applying the Guidelines in their current form.

1

 We thus affirm 

the length of Aguirre’s prison sentence.

Aguirre’s challenge to condition of supervised release number nine also 

fails. As an initial matter, both parties agree that, despite its reference to 

“‘[s]exually explicit conduct’ as defined in 18 U.S.C. section 2256(2),” the 

condition is appropriately limited to pornography. Therefore, to bring the 

condition into accordance with United States v. Gnirke, 775 F.3d 1155 (9th Cir. 

2015), we construe the condition to apply “(1) to any materials with depictions of 

‘sexually explicit conduct’ involving children, as defined by 18 U.S.C. § 2256(2), 

and (2) to any materials with depictions of ‘sexually explicit conduct’ involving 

adults, defined as explicit sexually stimulating depictions of adult sexual conduct 

that are deemed inappropriate by [Aguirre’s] probation officer. [Aguirre] may not 

possess, [own, use, view, or read] such materials, nor may he patronize any place 

where such materials or entertainment are available.” Gnirke, 775 F.3d at 1166.

 

1 Aguirre has not claimed any procedural error.
4

Once so defined, we conclude that the district court did not abuse its 

discretion in finding that the condition is “reasonably related to the goal[s] of 

deterrence, protection of the public, or rehabilitation of the offender,” United 

States v. Wolf Child, 699 F.3d 1082, 1090 (9th Cir. 2012) (alteration in original) 

(quoting United States v. Collins, 684 F.3d 873, 892 (9th Cir. 2012), and does not 

“infringe[] more on the offender’s liberty than is ‘reasonably necessary’ to 

accomplish these statutory goals,” id. (quoting 18 U.S.C. § 3583(d)(2)); see also

United States v. Daniels, 541 F.3d 915, 927-28 (9th Cir. 2008); United States v. 

Rearden, 349 F.3d 608, 619 (9th Cir. 2003).

2

Finally, with regard to condition of supervised release number ten, we first 

note that the parties have agreed that “business records” refers only to business 

phone records, not business records generally. The condition shall be so 

 

2 Although Daniels and Rearden were on plain error review, the only issue 

objected to by Aguirre with respect to condition nine was the scope of the 

restriction—an objection cured by our construing the condition consistent with 

Gnirke. Aguirre did not object that, even as narrowed, the condition failed to 

further the purposes of supervised release. This case is thus in a similar posture 

with respect to that issue as were Daniels and Rearden, even though the 

government failed to point this out. See United States v. Murguia-Rodriguez, –

No. 14-10400, 2016 WL 791241, at *6, *6 n.9 (Mar. 1, 2016) (a panel may apply 

plain error review even when the government has failed to assert that the error in 

question has not been preserved).
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construed. 

We otherwise agree with Aguirre that, as a procedural matter, the portion of 

condition number ten regarding the monitoring of “all outgoing or incoming phone 

calls,” finds no justification in the record and must be vacated. See Collins, 684 

F.3d at 890 (“the district court ‘need not state at sentencing the reasons for 

imposing each condition of supervised release,’ [but] that is only true ‘if the 

reasoning is apparent from the record’” (alteration omitted) (citation omitted) 

(quoting United States v. Rudd, 662 F.3d 1257, 1260 (9th Cir. 2011)). Although 

at oral argument the Government provided several possible reasons why such a 

condition is necessary, the record is devoid of any indication that the district court 

considered these—or any other justifications—for the condition. We therefore 

remand for reconsideration this portion of the condition. 

Aguirre’s request that the case be assigned to a different district judge on 

remand is denied. 

AFFIRMED IN PART; VACATED AND REMANDED IN PART.