FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

ROGER ALLAN ROYBAL,

Defendant-Appellant.

No. 12-30350

D.C. No.

6:11-cr-00021-CCL-1

OPINION

Appeal from the United States District Court

for the District of Montana

Charles C. Lovell, Senior District Judge, Presiding

Argued and Submitted

November 5, 2013—Portland, Oregon

Filed December 10, 2013

Before: Milan D. Smith, Jr. and Andrew D. Hurwitz,

Circuit Judges, and James C. Mahan, District Judge.*

Opinion by Judge Mahan

* The Honorable James C. Mahan, District Judge for the U.S. District

Court for the District of Nevada, sitting by designation.
2 UNITED STATES V. ROYBAL

SUMMARY**

Criminal Law

The panel affirmed a sentence in a case in which the

district court, based on its holding that the defendant’s act of

showing child pornography to an eleven-year-old victim

qualified as “distribution,” applied an enhancement under

U.S.S.G. § 2G2.2(b)(3)(D) and declined to apply a reduction

under U.S.S.G. § 2G2.2(b)(1).

Without deciding whether an act of “showing” child

pornography to a third party can itself constitute

“distribution,” the panel held that the defendant’s act of

permitting the child victim to print copies of child

pornography stored on the defendant’s computer qualified as

“distribution.”

The panel also held that given the lack of requisite

findings by the district court, penile plethysmograph testing

as part of a supervised-release condition requiring

participation in a sex-offender treatment program is not

warranted.

** This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
UNITED STATES V. ROYBAL 3

COUNSEL

John Rhodes, Assistant Federal Public Defender, Federal

Defenders of Montana, Missoula, Montana, for DefendantAppellant.

Lori Anne Harper Suek and Leif Johnson, Assistant United

States Attorneys, Office of the United States Attorney,

Billings, Montana, for Plaintiff-Appellee.

OPINION

MAHAN, District Judge:

Appellant Roger Allen Roybal (“Roybal”) pleaded guilty

to one count of receiving child pornography in violation of

18 U.S.C. § 2252A(a)(2). Based on its holding that Roybal’s

act of showing child pornography to an eleven-year-old

victim qualified as “distribution,” the district court (1) applied

a six-level sentencing enhancement under U.S.S.G.

§ 2G2.2(b)(3)(D), and (2) declined to apply a two-level

reduction under U.S.S.G. § 2G2.2(b)(1). On appeal, Roybal

contends that his act of “showing” child pornography does

not qualify as “distribution” under the sentencing guidelines.

Without deciding whether an act of “showing” child

pornography to a third party can itself constitute

“distribution,” we hold that additional findings made by the

district court warrant the six-level enhancement.

At sentencing, the district court imposed a supervisedrelease condition requiring that Roybal participate in a sexoffender treatment program and “abide by the policies of the

program, to include physiological testing.” The district court
4 UNITED STATES V. ROYBAL

made no specific mention of penile plethysmograph testing.

Roybal contends on appeal that penile plethysmograph testing

may not be imposed as a requirement of his supervised

release. As the district court did not make the requisite

findings, we hold that penile plethysmograph testing may not

be imposed.

I. Factual and Procedural Background

On June 22, 2012, Roger Allen Roybal pleaded guilty to

a single count of receiving child pornography in violation of

18 U.S.C. § 2252A(a)(2). The presentence investigation

report (“PSR”) subsequently prepared by the United States

Probation Office stated that Roybal had sexually abused an

eleven-year-old child over a four month period prior to his

arrest. In the PSR, the probation officer explained that the

victim had “disclosed multiple occasions during which

Roybal provided her with alcohol and had her watch

pornography with him.” Based upon these claims, the

probation officer’s sentencing recommendation included a

six-level enhancement under section 2G2.2(b)(3)(D) of the

United States Sentencing Guidelines (“U.S.S.G.”) “since the

offense involved distribution to a minor that was intended to

persuade, induce, entice, or coerce the minor to engage in any

illegal activity.”

At sentencing, the child victim recounted that she and

Roybal watched child pornography together and that Roybal

had made sexual contact with her on numerous occasions.

Additionally, she testified that Roybal permitted her to “make

[her] own book” of pornographic images of both adults and

children from his collection. According to the child victim,

this “book” was kept in Roybal’s garage in a bag with
UNITED STATES V. ROYBAL 5

alcohol, cigarettes, lubricant, and several pornographic

magazines.

Following this testimony, Roybal objected to the

probation officer’s recommendation regarding the

2G2.2(b)(3)(D) enhancement. Roybal argued the six-level

enhancement was inapplicable because his conduct of

“showing” child pornography to the victim did not qualify as

“distribution.” Concordantly, he argued that he qualified for

a two-level reduction pursuant to U.S.S.G. § 2G2.2(b)(1)

which applies when a defendant’s “conduct was limited to the

receipt or solicitation of material involving the sexual

exploitation of a minor; and [] the defendant did not intend to

traffic in, or distribute, such material.”

The district court overruled Roybal’s objections, holding

that Roybal’s acts of showing child pornography to the child

victim qualified as “distribution.” The district court included

the six-level enhancement in its calculation and sentenced

Roybal to eighteen years in prison followed by a lifetime of

supervised release.

As a condition of supervised release, the district court

ordered that Roybal complete a sex offender treatment

program as directed by the United States Probation Office.

The district court further ordered that Roybal would be

“required to abide by the policies of the program to include

physiological testing.”

Regarding the testimony of the child victim, the district

court held:

The [c]ourt finds the testimony of the

child witness was credible; it was moving
6 UNITED STATES V. ROYBAL

testimony. The [c]ourt finds it was truthful. It

was clear. And the evidence, therefore, is

clear and convincing that Mr. Roybal was

using child pornography to groom, persuade,

induce, entice this witness and actually to

normalize what would otherwise appear to the

child victim to be very abnormal behavior.

II. Standard of Review

“We review a district court’s interpretation and

application of the Sentencing Guidelines de novo.” United

States v. Calderon Espinosa, 569 F.3d 1005, 1007 (9th Cir.

2009) (citing United States v. Kimbrew, 406 F.3d 1149, 1151

(9th Cir. 2005)). Because Roybal objected to the district

court's calculation of his sentence, he preserved the issue on

appeal. See Calderon Espinosa, 569 F.3d at 1007.

III. Analysis

U.S.S.G. § 2G2.2(b)(3)(D) creates a six-level sentencing

enhancement for “[d]istribution [of child pornography] to a

minor that was intended to persuade, induce, entice, or coerce

the minor to engage in any illegal activity. . . .” Roybal

contests this enhancement on the sole ground that he did not

“distribute” child pornography. Relatedly, U.S.S.G.

§ 2G2.2(b)(1), in relevant part, provides a two-level reduction

if a “defendant did not intend to traffic in, or distribute, such

material. . . .”

Because Roybal believes he did not “distribute” within

the meaning of these two provisions, he argues that the

district court erred both in applying the six-level
UNITED STATES V. ROYBAL 7

2G2.2(b)(3)(D) enhancement and refusing to apply the twolevel 2G2.2(b)(1) reduction.

The decision of the district court “may be upheld upon

any ground which fairly supports it.” Dyniewicz v. United

States, 742 F.2d 484, 486 (9th Cir. 1984); see also Dandridge

v. Williams, 397 U.S. 471, 475 n.6 (1970). Here, Roybal

contests the district court’s sentencing calculation on the

basis that merely “showing” child pornography to the victim

could not qualify as “distribution.” However, we decline to

address this question, as Roybal’s act of permitting the child

victim to print copies of child pornography stored on his

computer independently qualifies as “distribution.”

A. Permitting the Child Victim to Print Child

Pornography from Roybal’s Collection was

“Distribution.”

Comment 1 to U.S.S.G. § 2G2.2 specifically defines

“distribution” as “any act, including possession with intent to

distribute, production, transmission, advertisement, and

transportation, related to the transfer of material involving the

sexual exploitation of a minor.”1 This court has previously

held that permitting a third party to copy images of child

pornography within one’s possession through an electronic

file sharing service qualifies as “distribution.” See, e.g.,

United States v. Budziak, 697 F.3d 1105, 1109 (9th Cir.

2012).

1

“[C]ommentary in the Guidelines Manual that interprets or explains a

guideline is authoritative unless it violates the Constitution or a federal

statute, or is inconsistent with, or a plainly erroneous reading of, that

guideline.” Stinson v. United States, 508 U.S. 36, 38 (1993); United States

v. Thornton, 444 F.3d 1163, 1165 n.3 (9th Cir. 2006).
8 UNITED STATES V. ROYBAL

Roybal does not object to or dispute the child victim’s

testimony that he permitted her to print a book of child

pornography from the images stored on his computer. The

district court stated that this testimony was “clear, truthful,

and moving.” Just like an individual who allows others to

access and copy images of child pornography via an online

file-sharing program, Roybal allowed the child victim to

access the pornographic images stored on his computer and

create copies of those images. The fact that the access given

to the child victim was in-person rather than over the internet

is inconsequential; Roybal’s act was certainly “related to the

transfer of material involving the sexual exploitation of a

minor,” fulfilling U.S.S.G. § 2G2.2's definition of

“distribution.” See U.S.S.G. § 2G2.2 cmt. n.1 (2011).

B. Penile Plethysmograph Testing is Not Warranted

Given the Lack of Requisite Findings by the District

Court.

Roybal also argues that he cannot be required to undergo

penile plethysmograph testing as part of a sex-offender

treatment program. Penile plethysmograph testing is a

procedure that “involves placing a pressure-sensitive device

around a man's penis, presenting him with an array of

sexually stimulating images, and determining his level of

sexual attraction by measuring minute changes in his erectile

responses.” United States v. Weber, 451 F.3d 552, 554 (9th

Cir. 2006) (quoting Jason R. Odeshoo, Of Penology and

Perversity: The Use of Penile Plethysmography on Convicted

Child Sex Offenders, 14 Temp. Pol. & Civ. Rts. L. Rev. 1, 2

(2004)).

This court has previously held that “the particularly

significant liberty interest in being free from plethysmograph
UNITED STATES V. ROYBAL 9

testing requires a thorough, on-the-record inquiry into

whether the degree of intrusion caused by such testing is

reasonably necessary to ‘accomplish one or more of the

factors listed in § 3583(d)(1)’ and ‘involves no greater

deprivation of liberty than is reasonably necessary,’ given the

available alternatives.” Weber, 451 F.3d at 568–69 (quoting

United States v. Williams, 356 F.3d 1045, 1057 (9th Cir.

2004)).

In this case, the government does not contest that the

district court made no finding which would merit the

imposition of penile plethysmograph testing. Accordingly, we

hold that Roybal cannot be forced to undergo such testing as

a condition of his supervised release.

AFFIRMED.