FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

ERIC PAUL VALLEJOS,

Defendant-Appellant.

No. 13-10025

D.C. No.

1:11-cr-00171-LJO-1

OPINION

Appeal from the United States District Court

for the Eastern District of California

Lawrence J. O’Neill, District Judge, Presiding

Argued and Submitted

December 2, 2013—San Francisco, California

Filed February 10, 2014

Before: Michael Daly Hawkins, Ronald M. Gould,

and Richard A. Paez, Circuit Judges.

Opinion by Judge Gould
2 UNITED STATES V. VALLEJOS

SUMMARY*

Criminal Law

The panel affirmed a conviction and sentence under

18 U.S.C. § 2252(a)(2) for receipt of material involving the

sexual exploitation of minors.

The panel held that a redacted version of the defendant’s

confession was not misleading and therefore the Rule of

Completeness did not require admission of the full statement

into evidence.

The panel held that the district court did not abuse its

discretion when it declined to instruct on the lesser-included

offense of possession of child pornography under 18 U.S.C.

§ 2252(a)(4).

The panel held that because a distribution enhancement

under U.S.S.G. § 2G2.2(b)(3)(F) affected neither the statutory

maximum nor any mandatory minimum sentence, neither

Apprendi v. New Jersey nor Alleyne v. United States is

implicated.

The panel held that the district court properly applied a

two-level distribution enhancement under § 2G2.2(b)(3)(F)

to the defendant, who used a file-sharing program to

download child pornography that, whether knowingly or

unknowingly, allowed others access to those files. The panel

held it matters not, for purposes of the enhancement, whether

* 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. VALLEJOS 3

someone else actually downloads a file from the defendant’s

computer.

COUNSEL

Ann H. McGlenon (argued), Assistant Federal Defender,

Heather Williams, Federal Defender, Joseph Schlesinger,

Acting Federal Defender, Fresno, California, for DefendantAppellant.

David L. Gappa (argued) and Megan A.S. Richards, Assistant

United States Attorneys; Benjamin B. Wagner, United States

Attorney, Fresno, California, for Plaintiff-Appellee.

OPINION

GOULD, Circuit Judge:

Defendant-Appellant Eric Paul Vallejos (“Vallejos”)

appeals his conviction and sentence under 18 U.S.C

§ 2252(a)(2) for receipt of material involving the sexual

exploitation of minors. Specifically, Vallejos appeals the

district court’s decision to deny his requests that (1) his

unedited confession be shown to the jury under the Rule of

Completeness, Fed. R. Evid. 106, and (2) the jury be

instructed on the lesser-included charge of possession of child

pornography. He also appeals the district court’s application

of a sentencing enhancement for distribution. See U.S.

Sentencing Guidelines Manual § 2G2.2(b)(3)(F). We have

jurisdiction under 28 U.S.C. § 1291, and we affirm.
4 UNITED STATES V. VALLEJOS

On September 16, 2010, police detective Arthur Hively

(“Detective Hively”) used a computer program to discover

that Vallejos was making available on a peer-to-peer filesharing network dozens of files whose names “were

consistent with child pornography.” Detective Hively

downloaded three of these files and confirmed that they were

pornographic images of children.

Three weeks later, police officers executing a search

warrant discovered dozens of child pornography images and

videos, and a peer-to-peer file sharing program called

LimeWire, on Vallejos’s computer.1 During a forensic

examination of Vallejos’s computer, Detective Hively found

some of the images he had downloaded as part of his initial

investigation the previous month. After the search, Vallejos

admitted to officers that “he was responsible for the child

pornography that was on the computer,” and he voluntarily

gave the police an audio- and video-recorded statement to

that effect. The district court played an edited version of this

statement at trial. After a two-day trial, a jury found Vallejos

guilty of receipt of material involving the sexual exploitation

of minors, in violation of 18 U.S.C. § 2252(a)(2).

The pre-sentence report recommended a sentence of 235

months, based on an offense level of 35, a criminal history

category of IV, and a Sentencing Guidelines range of 235

months to 293 months. At issue here is a two-level

enhancement for “distribution” under U.S.S.G.

§ 2G2.2(b)(3)(F) in light of Vallejos’s use of a peer-to-peer

1 At trial, Detective Hively testified about the operation of LimeWire. 

Specifically, he explained that one of the program’s default settings is

such that files downloaded to a user’s “shared folder” are “shared with

anybody . . . on the peer-to-peer network system.”
UNITED STATES V. VALLEJOS 5

file sharing network.2 The district court adopted the presentence report’s calculations, considered the 18 U.S.C.

§ 3553 factors, and sentenced Vallejos to 188 months

imprisonment—nearly 50 months shy of the low end of the

Guidelines range—and 180 months of supervised release.

I

We review the district court’s decision on the Rule of

Completeness for an abuse of discretion. See United States

v. Collicott, 92 F.3d 973, 983 (9th Cir. 1996). We review de

novo whether possession is a lesser-included offense of

receipt, but we review for an abuse of discretion the district

court’s decision not to instruct the jury on possession. See

United States v. Rivera-Alonzo, 584 F.3d 829, 832 (9th Cir.

2009). We review the district court’s interpretation of the

Sentencing Guidelines de novo, its application of the

Guidelines to the facts of the case for an abuse of discretion,

and its factual findings for clear error. See United States v.

Jennings, 711 F.3d 1144, 1146 (9th Cir. 2013).

II

Federal Rule of Evidence 106 codified the common law

Rule of Completeness, which exists to avert

“misunderstanding or distortion” caused by introduction of

2 The Government requested this enhancement for “distribution,” despite

Vallejos’s conviction for “receipt,” on the theory that when Detective

Hively downloaded some of the child pornography located on Vallejos’s

computer, Vallejos effectively “distributed” those files to Detective

Hively. In other words, the Government argued, Vallejos’s knowing use

of a peer-to-peer file-sharing program—which explicitly warned its users:

“Files in your public shared list are shared with the world”—constituted

both receipt and distribution.
6 UNITED STATES V. VALLEJOS

only part of a document. Beech Aircraft Corp. v. Rainey,

488 U.S. 153, 172 (1988); see also Fed. R. Evid. 106 (“If a

party introduces all or part of a writing or recorded statement,

an adverse party may require the introduction, at that time, of

any other part—or any other writing or recorded

statement—that in fairness ought to be considered at the same

time.”). The Rule does not, however, require the introduction

of any unedited writing or statement merely because an

adverse party has introduced an edited version. Rather, “it is

often perfectly proper to admit segments of prior testimony

without including everything, and adverse parties are not

entitled to offer additional segments just because they are

there and the proponent has not offered them.” Collicott,

92 F.3d at 983 (internal quotation marks omitted). In other

words, if the “complete statement [does] not serve to correct

a misleading impression” in the edited statement that is

created by taking something out of context, the Rule of

Completeness will not be applied to admit the full statement. 

Id.; see also United States v. Dorrell, 758 F.2d 427, 434–35

(9th Cir. 1985) (finding no Rule of Completeness violation

where the edited version of a confession did not “distort[] the

meaning of the statement” (internal quotation marks

omitted)).

Vallejos contends that the redacted version of his

confession misled the jury because it left out parts

concerning, among other things, his prior prison sentence, his

drug history, and his church. This argument misunderstands

the Rule’s purpose. The district court properlyconcluded that

the Rule of Completeness is not so broad as to require the

admission of all redacted portions of a statement, without

regard to content. See Collicott, 92 F.3d at 983. The district

court explained that “[j]ust because somebody is putting in

part of a transcript . . . does not mean for the sake of
UNITED STATES V. VALLEJOS 7

completeness, everything comes in,” and it properly rejected

Vallejos’s argument that the redacted portions should be

admitted to show the jury the “flavor of the interview,” to

“humanize” Vallejos, to prove his “character,” and to convey

to the jury the voluntariness of the statement. The district

court did not abuse its discretion when it determined

that—while this evidence might be relevant to “sympathy”

and sentencing—the redacted statement was not misleading

and therefore that the Rule of Completeness did not require

admission of the full statement into evidence. See id.

III

The district court also did not abuse its discretion when it

declined to instruct the jury on possession. Possession of

child pornography under 18 U.S.C. § 2252(a)(4) is a lesserincluded offense of receipt of child pornography under

18 U.S.C. § 2252(a)(2). See, e.g., United States v. Schales,

546 F.3d 965, 977 (9th Cir. 2008); United States v.

Davenport, 519 F.3d 940, 945 (9th Cir. 2008). But a

defendant who is charged with receipt of child pornography

is entitled to an instruction on possession only “if the

evidence would permit a jury rationally to find him guilty of

[possession] and acquit him of [receipt].” Keeble v. United

States, 412 U.S. 205, 208 (1973); see also United States v.

Arnt, 474 F.3d 1159, 1163 (9th Cir. 2007) (quoting Keeble).

Vallejos admitted at trial that he “received many images

of child pornography” and that he viewed both photos and

videos on his computer. Nonetheless, he asked the court to

instruct the jury that it could find him guilty of possession of

child pornography if it did not find him guilty of receipt

beyond a reasonable doubt. The district court properly denied

Vallejos’s request, noting that it was “undisputed” that
8 UNITED STATES V. VALLEJOS

Vallejos “received” child pornography. Receipt of child

pornography requires the same elements as possession, with

an additional element of “knowing acceptance or taking.” 

Davenport, 519 F.3d at 943. There was clear and undisputed

evidence that Vallejos knew he was downloading child

pornography—indeed, there were multiple admissions from

him to that effect. We conclude that no rational jury could

have found Vallejos guilty of possession but acquitted him of

receipt.

IV

We turn now to Vallejos’s final argument that, under the

rule of Apprendi v. New Jersey, 530 U.S. 466 (2000), and

Blakely v. Washington, 542 U.S. 296 (2004), his distribution

enhancement was unconstitutional because a defendant may

be sentenced only upon the elements of an offense to which

he has pleaded guilty or which were proven at trial. Vallejos

argues that because “he had no intent to distribute” child

pornography, the district court should have calculated his

sentence using an offense level consistent with receipt, rather

than one consistent with receipt plus an enhancement for

distribution.3

“Any fact . . . necessary to support a sentence exceeding

the maximum authorized by the facts . . . must be admitted by

the defendant or proved to a jury beyond a reasonable doubt.” 

United States v. Booker, 543 U.S. 220, 244 (2005). However,

“[w]hen a trial judge exercises his discretion to select a

3 Distribution, according to Vallejos, is not “proven by a person opening

a LimeWire file”; rather, it “requires a knowing fact, . . . an active ability

to reach out to another and give to someone, sell to someone, distribute to

someone, not simply to sit in his living room and look at something.”
UNITED STATES V. VALLEJOS 9

specific sentence within a defined range, the defendant has no

right to a jury determination of the facts that the judge deems

relevant.” Id. at 233. And if a particular fact is not an

“element or ingredient of the charged offense,” it need not be

found by a jury beyond a reasonable doubt. Alleyne v. United

States, 133 S. Ct. 2151, 2158 (2013) (internal quotation

marks omitted).

Vallejos misunderstands the law. The distribution

enhancement affected neither the statutory maximum

sentence nor anymandatoryminimum sentence; thus, neither

Apprendi nor Alleyne v. United States is implicated. See id.

at 2163 (holding that judicial factfinding in imposing a

judgment within the range prescribed by statute does not

violate the Sixth Amendment). The district court correctly

calculated Vallejos’s base offense level as 22. See U.S.S.G.

§ 2G2.2(a). After several uncontested enhancements4and a

two-level decrease for acceptance ofresponsibility,Vallejos’s

offense level stood at 33. The district court then applied a

two-level distribution enhancement on the theory that

Vallejos “affirmatively installed a peer-to-peer file sharing

network,” which, “by its very nature,” allows one both to

“receive” and to “distribute” material. See id.

§ 2G2.2(b)(3)(F). Because the effect of using a file-sharing

program “is to receive and to send out,” the district court

concluded that there was a “distribution aspect” to Vallejos’s

actions.

4 The district court applied increases for: material involving a

prepubescent minor (+2); material portraying sadistic or masochistic

conduct or other depictions of violence (+4); the use of a computer for the

possession, transmission, receipt, or distribution of the material (+2); and

the receipt of more than 600 images (+5). See id. § 2G2.2(a)–(b).
10 UNITED STATES V. VALLEJOS

We have not yet addressed whether the use of a filesharing program to download child pornography, without

more, is sufficient to sustain a sentencing enhancement for

distribution under U.S.S.G. § 2G2.2(b)(3)(F) upon a

conviction for receipt. We have, however, previously held

that “evidence of a deliberate, affirmative action of delivery”

is not required to sustain a conviction for distribution of child

pornography under 18 U.S.C § 2252(a)(2). United States v.

Budziak, 697 F.3d 1105, 1108–09 (9th Cir. 2012). Rather, we

held, “evidence is sufficient to support a conviction for

distribution . . . when it shows that the defendant maintained

child pornography in a shared folder, knew that doing so

would allow others to download it, and another person

actually downloaded it.” Id. at 1109 (internal citation

omitted).

In similar cases, two of our sister circuits have held that

the mere use of a file-sharing program to download child

pornography is enough to warrant the two-level distribution

enhancement. See United States v. Ray, 704 F.3d 1307,

1311–12 (10th Cir. 2013) (“§ 2G2.2(b)(3)(F) does not require

that a defendant know about the distribution capability of the

program he is using to view child pornography.”); United

States v. Layton, 564 F.3d 330, 335 (4th Cir. 2009) (“[U]se of

a peer-to-peer file sharing program constitutes ‘distribution’

for the purposes of U.S.S.G. § 2G2.2(b)(3)(F).”).

These circuits, as well as others, have endorsed

applications of the enhancement in similar circumstances and

agree that “an intent to distribute is not required for an act to

qualify as ‘distribution’ under § 2G2.2(b).” United States v.

Ramos, 695 F.3d 1035, 1041 (10th Cir. 2012); see also, e.g.,

United States v. McManus, 734 F.3d 315, 319 (4th Cir. 2013)

(“§ 2G2.2(b)(3)(F) is a residual enhancement” that may be
UNITED STATES V. VALLEJOS 11

applied “when a defendant knowingly permits others to

access and retrieve child pornography files in the defendant’s

possession, even if he does so passively.”); United States v.

Reingold, 731 F.3d 204, 229–30 (2d Cir. 2013)

(“[K]nowingly placing child pornography files in a shared

folder on a peer-to-peer file-sharing network constitutes

distribution . . . even if no one actually obtains an image from

the folder” and “without regard to whether the defendant’s

primary purpose in placing child pornography files in a filesharing program was to receive or to distribute child

pornography.”); United States v. Chiaradio, 684 F.3d 265,

282 (1st Cir. 2012) (“The fact that the defendant did not

actively elect to transmit those files is irrelevant.”); United

States v. Bolton, 669 F.3d 780 (6th Cir. 2012); United States

v. Spriggs, 666 F.3d 1284, 1287 (11th Cir. 2012) (“[T]o

establish distribution, the government does not need to prove

that another user actually downloaded a file from [the user’s]

computer. . . . When the user knowingly makes the files

accessible to others, the distribution is complete.”); United

States v. Carani, 492 F.3d 867, 875–76 (7th Cir. 2007)

(noting that the “passive nature” of the file-sharing program

is “irrelevant” to the propriety of a distribution enhancement

(internal quotation marks omitted)).

Courts have, however, occasionally been reluctant to

apply the distribution enhancement based solely on the use of

a file-sharing program. See, e.g., United States v. Robinson,

714 F.3d 466, 468 (7th Cir. 2013) (“[T]he sentencing judge

must find that the defendant either knew, or was reckless in

failing to discover, that the files he was downloading could be

viewed online by other people.”); United States v. Durham,

618 F.3d 921, 931 (8th Cir. 2010) (“[W]e have explicitly

rejected any suggestion we automatically apply a distribution

enhancement based merely on a defendant’s use of a file-
12 UNITED STATES V. VALLEJOS

sharing program.”). Nonetheless, even the Eighth Circuit,

which has adopted a case-by-case approach to the

enhancement, regularly applies it to defendants who, like

Vallejos, demonstrate even minimal knowledge about the

operation of file-sharing programs. See, e.g., United States v.

Glassgow, 682 F.3d 1107, 1110 (8th Cir. 2012) (“[I]f a

defendant uses a file-sharing program, a fact-finder may

reasonably infer he intended to distribute files, unless there is

concrete evidence of ignorance.” (internal quotation marks

omitted)); United States v. Dodd, 598 F.3d 449, 452–53 (8th

Cir. 2010) (“[D]istribution as defined in § 2G2.2 includes

operating a file sharing program that enables other

participating users to access and download files placed in a

shared folder, and then placing child pornography files in that

folder.”).

Following at least eight of our sister circuits, we hold that

the knowing use of a file-sharing program to download child

pornography involves not merely the receipt of illicit

material, but also the reciprocal distribution of it. We

therefore conclude that the district court properly applied a

two-level distribution enhancement under U.S.S.G.

§ 2G2.2(b)(3)(F) to Vallejos, who used a file-sharing program

to download child pornography that, whether knowingly or

unknowingly, allowed others access to those files.5

5 We need not decide in this case whether ignorance can defeat the

enhancement. InUnited States v. Durham, for example, the EighthCircuit

declined to apply the enhancement to a defendant who neither installed the

file-sharing program on his computer nor knew how to operate it. 

618 F.3d at 928. Because Vallejos installed LimeWire and knew how to

use the program, we need not elaborate here on what specifically may

constitute evidence sufficient to avoid application of the enhancement. It

is enough to observe that Vallejos did not present evidence that he had so

little knowledge of how LimeWire worked as would unmistakably negate
UNITED STATES V. VALLEJOS 13

We also join our sister circuits in holding that it matters

not, for purposes of the enhancement, whether someone else

actually downloads a file from the defendant’s computer. See

Spriggs, 666 F.3d at 1287. Our holding is consistent with the

plain language of the Sentencing Guidelines, which are silent

with respect to intent, and which define “distribution” broadly

as “any act, including . . . transmission, . . . related to the

transfer of material involving the sexual exploitation of a

minor.” U.S.S.G. § 2G2.2 cmt. n.1.

Vallejos understood how LimeWire operated. He

testified at trial that he initially downloaded the file-sharing

program “for music” but that he “came across” child

pornography while using LimeWire to view adult

pornography. He said that child pornography “piqued his

interest” and that he began to “copy information from child

pornography files . . . and use information in those titles to

search for other files.” He testified about the search terms he

used to “get more child pornography,” and he explained that

he generally deleted images after viewing them. Finally, as

Detective Hively testified at trial, LimeWire explicitly

warned its users: “Files in your public shared list are shared

with the world.” The district court did not abuse its discretion

when it applied a two-level distribution enhancement in

calculating Vallejos’s sentence.

Nor did the district court misread the Sentencing

Guidelines, which explicitly authorize a distribution

enhancement for defendants convicted of “Receiving,

Transporting, Shipping, Soliciting, or Advertising Material

Involving the Sexual Exploitation of a Minor.” Id. § 2G2.2

his presumed intent to distribute the child pornography files on his

computer to all LimeWire users.
14 UNITED STATES V. VALLEJOS

(emphasis added). It is irrelevant that facts supporting the

enhancement were neither alleged in the indictment nor

proven to the jury beyond a reasonable doubt. Because the

district court found by a preponderance of the evidence that

Vallejos distributed child pornography, it was authorized to

apply the distribution enhancement. See United States v.

Riley, 335 F.3d 919, 925 (9th Cir. 2003) (“Generally, factual

findings underlying sentence enhancements must be

supported by a preponderance of the evidence.”).

AFFIRMED.