F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

U N I T E D S T A T E S O F A M E R I C A , Plaintiff-Appellee ,

v

.
R O G E R A L L

A N R O Y B A L , D efendant-Appellant

. No. 12-30350

D.C. No. 6:11-cr-00021-CCL -1

OPI NI ON

Appeal from the United States District Court for the District of Montana Charles C. L ovell, Senior District J udg e, Presiding

Arg ued and Submitted November 5, 2013—Portland, Oreg on

F iled December 10, 2013

B efore: Milan D. Smith, J r. and Andrew D. Hurwitz , Circuit J udg es, and J ames C. Mahan, District J u dg e. *

Opinion by

J udg e Mahan

* T h e H o n orab l e J am es C. Mah an , District J u d g e f o r th e U .S. District Co urt f o r th e District o f

Nev ad a, sittin g b y

d esig n atio n

.U N I T E D S T A T E S V

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SUMMARY * *

Crim inal Law

The panel affirmed a sentence i n a case in w hich the district court, based on its h olding that the defendant’s act o f showing child p ornog raphy to an eleven-year-old victim qualified as “distribution,” applied an enhancement under U.S.S.G. § 2G2.2(b)(3)(D) a nd declined to apply a reduction under U.S.S.G. § 2G2.2(b)(1).

W ith o ut d eciding whether an act of “showing ” child pornog raphy to a th i rd party can itself constitute “distribution,” the panel held that the defendant’ s act o f permitting the child victim to print copies of child pornog raphy stored on the defendant’s computer qualified a s “distribution.”

The panel also held that g ive n the lack of requisite finding s by the district court, p enile plethy smog raph testing

as part of a super v i s ed-release condition requiring pa rt icipation in a sex -offender treatment prog ram is not warranted.

** T h is su m m ary co n stitu

t es n o p ar t o f t h e o p in io n o f th e co urt. It h as b eenp rep ared b y

co urt staf

f f o r th e co n v en i en ce o f

th e read er.U N I T E D S T A T E S V

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COUNSEL

J ohn Rhodes, Assi stant F ederal Public Defender, F ederal Defenders o f Montana, Missoula, Montana, for D efendantAppellant.

L or i A n n e Harper Suek a n d L e if J ohnson, Assistant United States Attorney s, Office of the United Sta t es A ttorney , B illing s, Montana, for Plaintiff-Appellee.

OP INION
MAHAN, District J udg e: Appellant Rog er Allen Roy bal (“Roy bal”) pleaded g uilty to one count of receiving child p ornog raphy in violatio n o f 18 U.S.C. § 2 252A(a)(2). B ased on its holding that Roy bal’s

a c t o f showing child pornog raphy to an eleven-year-old victim qualified as “distribution,” the dis t r i ct court (1) a

pplied

a six

- level sentencing enhancement under U.S. S.G. § 2G2.2(b)(3)(D), a

nd ( 2) declined to apply a two-level reduction under U.S.S.G. § 2G2.2(b)(1). On appeal , R o y bal contends that his a c t of “showing ” child pornog raphy does not qualify as “distribution” under the sentencing g uidelines. W i t h out deciding w hether an act o f “showing ” chil d pornog raphy to a third party can itself constitute “distribu t i on,” we hold that additional f inding s made by the district court warrant the six -level enhancement.

A t s e n tencing , the district court imposed a supervised

release condition requiring tha t Roy bal participate in a sex
offender treatment prog ram and “abide b y the policies of the prog r am, to include phy siolog ical testing .” The district courtU N I T E D S T A T E S V

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m a d e no specific mention of penile plethy smog raph testing. Roy bal conte n d s o n appeal that penile plethy smog raph testing may n ot be impos e d as a requirement of his supervised release. As the distric t c ourt did not make the requisite finding s, w e hold that penile plethy smog raph testing may not be imposed.

I. F a ctual and P rocedural Background

On J une 22, 2012, Rog er Allen Roy bal pleaded g

u ilty to
a sing le count of receiving child pornog raphy in violation o f 1 8 U .S.C. § 2252A(a)(2). The presentence investig ati o n report (“PSR”) subsequently p rep ared b y the United States Probation Office stated that Roy bal had sex u a lly abused an eleven-year-old child over a four month period prior t o his

ar rest. I n the PSR, the probation officer ex plained that the victim had “disclosed multiple occas i o n s during which Roy bal provided her w i t h a lcohol and had her watch pornog raphy with him.” B ased upon these claims, the probation officer’s sentencing recommendation included a six -level enhancement under section 2G2. 2 ( b )(3)(D) o f 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 eng ag e in any illeg al activity .”

At sentencing , the child victim recounted that sh e a n d Roy bal watched child pornog raphy tog ether and that Roy bal had made sex u al c o ntact w ith h er o n n u m e rous occasions. Additionally , she testified that Roy bal permitted her to “make [ her] o wn book” of p ornog raphic imag e s of both adu l t s and children from his c ollection. A ccording to the child victim, this “book” was kept i n R o y b al’s g arag e in a b ag withU N I T E D S T A T E S V

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alcohol, cig arettes, lubricant, and sever a l pornog raphic mag az ines.

F ollowing this testimony , R o y b al objected to the p r o b a t i o n o f

f i c e r ’ s r e c o m m e n d a t i o n r e g a r d i n g t h e 2G2.2(b)(3)(D) enhancement. Roy b al argued the six -level enhancement was inap p l i cable because his conduct o f “showing ” c hild pornog raphy to the victim d id not qualify a s “distribution.” Concordantly , he argued that he q ualified 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 o r solicit a t ion of material involving the sex ual

ex p loitation of a minor; and [ ] the defendant d id n ot intend to traffic in, or distribute, such material.”

The district court overruled Roy b al’s objections, holding that Roy bal’s acts of showing child pornog raphy to the child victim qualified a s “distribution.” T h e district c ourt included the six -level enhancement in its c alculation and sentenced Roy bal to eig hteen y ears in p rison followe d b y a lifetime o f supervised release.

As a c ondition of supervised release, the district co u r t ordered that Roy

bal complete a sex offender tr e a tment prog r am as directed by the United S t a tes Probation Office. The district court fur t h e r o rdered that Roy bal would be “requir e d t o a

bide by the policies of the prog r am to include phy siolog ical testing

. ”
Reg arding the testimony o f the c hild victim, the d i s trict court held:

The [ c] ourt f inds the testimony o f the child witness was credi b l e ; it was movingU N I T E D S T A T E S V

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testimony

. The [ c ] ourt finds it w as truthful. I t
was clear. And the evidence, therefo r e , is clear and convincing that Mr. Roy bal was using child p o rnog r aphy to g room, persuade, i n duce, entice this witness and actually t o normaliz e what would o therwise appear to the child victim to be very

abnormal behavior.

II. Standard of Review

“W e review a d i s t ri c t c o urt’s interpretation a nd application of the Sentencing G u idelines de novo.” United States v. Calderon Espinosa , 569 F .3d 1005, 1007 (9th Cir. 2009) (citing United States v. Kimbrew , 406 F .3d 1 149, 1151 (9th Cir. 2005)). B ecause Roy bal o b jected to the district court' s calculation o f 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) c reates a six -level sentencing enhancement for “[ d] istribution [ o f child pornog raphy ] to a minor that was intended to p ersuade, induce, entice, or coerce the minor to eng ag e in any illeg al activity

. . . .” Roy bal contests this enhancement o n the sole g r ound that he did not

“ d i stribute” c h i l d p o r n o gr a p h y

. R e l a t e d l y , 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. . . .”

B e cause Roy

bal b elieves h e did n ot “distribute” within t h e meaning o f these two provisions, he argues that t h e district court erred both in apply ing the six -levelU N I T E D S T A T E S V

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

T h e decision of the district court “may be u pheld u p o n any g round which fairly s u pports it.” D yniewicz v. United States , 742 F .2d 484, 4 86 (9th Cir. 1 984); see also Dandridge

v. W illiams, 397 U.S. 471, 475 n .6 (1 970). Here, Roy bal contests the district court’s sentencing calculation on the basis that merely “showing ” child pornog raphy to the victim could not qualify as “ d istribution.” However, we decline to address this question, as Roy bal’s act o f permitting the child victim to print c opies of child p ornog raphy stored on his computer independently

qualifies as “distribution.”

A. P erm itting the Child Victim to P rint Child P ornography f

r om Roybal’s Collection w as “Distribution.”

Comment 1 to U .S.S.G. § 2G2.2 specifically defines “distribution” as “any act, including possession with intent to distribute, production, transmission, adverti s e ment, a nd transportation, related to the transfer of material involving the

sex ual ex ploitation of a m inor.” 1 This court has previously held that permitting a third party t o copy imag e s o f child pornog raphy within o ne’s possession throug h a n e lectronic file sharing service qualifies a s “distribution.” S ee, e.g. , United States v. Budziak , 6 9 7 F. 3 d 1105, 1109 (9th Cir. 2012).

1 “ [C]o m m en tary i n th e Gu i d elin es Man u al t h at in terp rets o r ex p lain s a g u id elin e is au th oritativ e un less it v io lates th e Co n stitu tio n o r a f

ed eral

s t a t u t e , o r is in co n sistent w ith , o r a p lain ly erro n eo u s read in g o f , th at g u id elin e.” S tin so n v. Un i ted Sta tes , 5 0 8 U.S. 3 6 , 3 8 (1 9 9 3 ); Un ited S ta tes v. Th o rn to n , 4 4 4 F.3 d 1 1 6 3, 1 1 6 5 n .3 (9 th Cir. 2 0 0 6 ).U N I T E D S T A T E S V

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Roy bal d o es not object to or dispute the child victim’s testimony that h e permitted h er to print a book of child pornog raphy from t h e i mag es stored on his computer. The district court stated that this testimony was “cle a r , t ruthful, and moving .” J ust like a n i n d ividual w ho allows others to
access and copy imag es of c h ild pornog raphy via an online fil e
- s h a ring prog ram, Roy bal allowed the child victim to
access the pornog raphic ima ge s stored o n his computer a nd create c opies of those imag es. The fact that the access g iven to the child victim was in-person rather than o ver the internet is inconsequential; Roy

bal’s act w as certainly “related to the tran s f e r o f material involving the sex ual ex ploitation of a minor,” fulfilling U.S.S.G. § 2G2.2' s definitio n o f “distribution.” See U.S.S.G. § 2G2.2 cmt. n.1 (2011).

B. P enile P lethysm ograph Testing is Not Warranted G iven the Lack of

Requisite F indings by the District Court

. Roy bal also argues that he cannot be required to underg o penile p lethy smog raph testing as part of a sex
- offen d e r treatment p rog ram. Penile p l e t h y smog raph testing is a procedure that “involves pl acing a pressure-sensitive device around a man' s penis, presenting him with an a rray o f

sex ually stimulating imag es, and determining h i s level o f

sex ual attraction by measuring minute chang es in his erectile responses.” United States v. W e b e r , 451 F .3d 552, 554 (9th Cir. 2006) (quoting J a son R. O deshoo, Of P enology 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 previo u s l y held that “the p a rticularly sig nificant liberty interest in being free from plethy smog raphU N I T E D S T A T E S V

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testing r e q

uires a thoroug h, on-the-record inquiry into whether the deg ree of intrusion caused by such testing is reasonably necessary to ‘accomplish o ne or more of the factors listed in § 3 583(d)(1)’ a n d ‘involves no gr ea ter deprivation of liberty than is reasonably necessary ,’ g iven the available alternatives. ” W e ber , 451 F

. 3d at 568–69 (quoting Uni t e d States v. W

illiams , 3 56 F .3d 1045, 1057 (9th Cir. 2004)).

I n this case, the g o vernment does not c o n test that the district c ourt made no f ind i n g w h ich would merit the imposition of penile p l e t

hy s m o g r a p h testing

. According ly , we hold that Roy

bal cannot b e forced to underg o such testing a s a condition of his supervised release.

AF F IRMED.