NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

 Plaintiff-Appellee,

 v.

LUIS ALFREDO ESPINOZA,

 Defendant - Appellant.

No. 14-10386

D.C. No. 1-12-CR-00383-AWIBAM-1

MEMORANDUM∗

Appeal from the United States District Court

For the Eastern District of California

Anthony W. Ishii, District Judge, Presiding

Argued and Submitted September 18, 2015

San Francisco, California

Before CHRISTEN and FRIEDLAND, Circuit Judges and LEMELLE, District 

Judge. ∗∗

Luis Alfredo Espinoza (“Appellant” or “Espinoza”) appeals the sentence and 

judgment imposed following his guilty plea to receipt and distribution of at least one 

 

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

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

∗∗ The Honorable Ivan L.R. Lemelle, Senior District Judge for the U.S. 

District Court for the Eastern District of Louisiana, sitting by designation.

FILED

JAN 19 2016

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
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visual depiction involving a minor engaged in sexually explicit conduct in violation 

of 18 U.S.C. § 2252(a)(2). Espinoza raises four issues on appeal: (1) whether the 

district court’s application of both the vulnerable victim enhancement, U.S.S.G. §

3A1.1(b)(1), and the prepubescent minor enhancement, U.S.S.G. § 2G2.2(b)(2), 

constituted impermissible double-counting of age under the sentencing guidelines; 

(2) whether Espinoza’s sentence was substantively unreasonable; (3) whether the 

case should be remanded to conform the written judgment to the court’s oral 

pronouncement of Special Condition No. 4; and (4) whether the case should be 

remanded to conform the written judgment to the court’s oral pronouncement of 

Special Condition No. 6 and to clarify the breadth of the condition. 

The commentary to the vulnerable victim enhancement, U.S.S.G. § 3A1.1,

provides that courts should not apply the enhancement “if the factor that makes the 

person a vulnerable victim is incorporated in the offense guideline.” In United States

v. Wright, we interpreted that comment when addressing the application of the

enhancements at issue here, finding that “[b]ecause the traits and characteristics 

associated with infancy and the toddler stage can exist independently of age, and 

because the factors of extreme youth and small physical size recognize a 

vulnerability beyond ‘age’ per se, we hold that the district court did not contravene 

the commentary of § 3A1.1.” 373 F.3d 935, 943 (9th Cir. 2004). Wright is binding 
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precedent in our circuit. Accordingly, we read Wright as permitting the application 

of both the prepubescent minor enhancement and the vulnerable victim enhancement 

so long as the district court makes a finding of vulnerability—or adopts a 

Presentence Report (“PSR”) with a finding of vulnerability—that goes beyond a 

mere acknowledgment of the victim’s age. 

Here, the district judge noted that “we’re talking about vulnerable victims 

worldwide, arguably ‘the’ most absolute vulnerable victims, children, young 

children.” While this seemingly indicates the district court’s reliance on age in 

applying the vulnerable victim enhancement, the court also admitted the actual 

videos and images that police found in Espinoza’s possession, which show the 

victims’ small sizes. Common sense suggests that the children depicted were likely

more vulnerable to increased pain from the sexual abuses committed on their small

physical frames. Thus, by admitting the images, it seems that the district judge may 

have considered more than age alone in applying both enhancements.

1 However, the 

record does not include a specific finding of vulnerability beyond age, the PSR 

 

1 The government, when offering the evidence, specifically requested that the

district court “include in the record the actual video so that there would be a record 

that supports the application of the vulnerable victim enhancement,” and the 

district judge responded: “Okay, I’ll go ahead and admit [the exhibits] into 

evidence.” Moreover, after admitting the images, the court specifically found that 

“there is sufficient evidence . . . to conclude that each of the enhancements . . . [is] 

supported by factual evidence.” (emphasis added). 
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adopted by the court also fails to make such a finding, and the record does not 

establish that the district court had an opportunity to view all of the video evidence. 

Though vulnerabilities such as the victims’ small sizes and the associated degree of

pain likely factored into the lower court’s application of the enhancement, the record 

does not sufficiently make that clear. Espinoza’s sentence is vacated and remanded. 

On remand, the district court must clarify whether a factual basis exists for the 

application of the vulnerable victim enhancement.2

The government concedes that the district court erred by issuing a written 

judgment that differs from the oral pronouncement regarding Special Conditions No. 

4 and No. 6. To the extent that the district court decides to re-impose these 

conditions, it should ensure that the written judgment is consistent with the oral 

pronouncements made at sentencing. United States v. Jones, 696 F.3d 932, 938 (9th 

Cir. 2012). At sentencing, the court incorporated by reference the PSR’s Special 

Conditions. Special Condition No. 4, as written in the PSR, uses the word “known” 

as a modifier of “children under the age of 18” in the first sentence and of “persons 

under the age of 18” in the last sentence. However, the written judgment leaves out 

the “known” modifier altogether. The written judgment and the PSR also differ with 

 

2 Because we vacate Espinoza’s sentence, his challenge to the substantive 

reasonableness of that sentence is now moot. 
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respect to Special Condition No. 6. The judgment leaves out the last sentence of 

Special Condition No. 6 as written in the PSR. On remand, the district court should 

ensure that the written judgment is consistent with the oral pronouncements made at 

sentencing. Jones, 696 F.3d at 938. Further, the court should determine whether 

United States v. Wolfchild, 699 F.3d 1082 (9th Cir. 2012), requires that Espinoza’s 

own children be exempted from Special Condition No. 4.

Additionally, should the district court determine upon resentencing to reimpose Special Condition No. 6 of Espinoza’s supervised release, the district court 

must clarify the breadth of that condition. As is, it is dangerously close to running 

afoul of this Court’s decision in United States v. Gnirke, 775 F.3d 1155, 1163 (9th 

Cir. 2015). In that case, a restriction prevented Gnirke from patronizing “any place 

where such [sexually explicit] materials or entertainment are available”—a 

restriction that we held deprived him of more liberty than reasonably necessary by 

severely restricting legitimate activities. Id. at 1159. Special Condition No. 6 

prohibits Espinoza from possessing, owning, using, viewing, reading, or frequenting 

places with material depicting or describing sexually explicit conduct. The final line 

of Special Condition No. 6 prohibits him from frequenting places where the 

“primary purpose” is related to such material. The first sentence and the last thus 

seem to be in conflict, with the first sentence being the sort of overbroad restriction 
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we held improper in Gnirke. The question for the district court is whether the

“primary purpose” limitation included in the last sentence applies to the entirety of 

Special Condition No. 6. If so, the condition is sufficiently constrained to comport 

with Gnirke. However, if that last sentence is just another independent restriction, 

then Special Condition No. 6 runs contrary to Gnirke. 

The sentence is VACATED AND REMANDED for resentencing.