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 , P laintiff-Appellee
,

v.

E R I C P A U L V A L L E J O S , Defendant-Appellant

. No. 13-10025

D.C. No. 1:11-cr-00171-L J O-1

OPI NI ON

A ppeal from the United States District Court for the Eastern District of California L awrence J . O’Neill, District J u dg e, Presiding

Arg ued and Submitted December 2, 2013—San F r ancisco, California

F iled F ebruary

10, 2014

B efore: Michael Daly

Hawkins, Ronald M. Gould, and Richard A. Paez , Circuit J udg es.

O pinion by

J udg e GouldU N I T E D S T A T E S V

. V A L L E J O S 2

SUMMARY *

Crim inal Law

T h e p anel affirmed a conviction and sentence unde r 18 U.S.C. § 2252(a)(2) for r eceipt of material involving the

sex ual ex ploitation of minors.

The panel held that a redacted v ersion of the defendant’s confessio n was not misleading a nd therefore the Rule o f Completeness did not require admission of the full statement into evidence.

The panel held that the district co u r t did not a buse its discretion when it declined to instruct on the lesser-included offense of possession o f child pornog raphy 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 s t a tutory

max imum nor any ma n datory minimum sentence, neither Apprendi v. New Jersey nor A l l e y n e v. United States is implicated.

The panel held that the district court properly a pplied a two-level distribution e nhancement under § 2G2.2(b)(3 ) ( F )
to the d efend a n t , who used a file-sharing prog ram to download child pornog raphy that, whether know i n g ly o r unknowing ly
, allowed others access to those files. The panel held it matters not, f

or purposes of the e n hancement, whether

* T h is su m m ary co n stitu

tes n o part o f th e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt 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

. V A L L E J O S 3

someone else actually downloads a file f rom the defendant’s computer.

COUNSEL

Ann H. McGlenon (arg

ued), Assistant F ederal Defender, Heather W illiams, F ederal Defender, J oseph Schles ing er, Acting F ederal Defender, F resno, California, for DefendantAppellant.

David L

. Gappa (arg

ued) and Meg an A.S. Richards, Assistant United States A ttorney s; B enjamin B

. W ag ner, United States Attorney , F resno, California, for Plaintiff-Appellee.

OP INION

GOUL D, Circuit J udg e :
Defendant-Appellant E r ic Paul Vallejos (“Vallejos”)

a p p eals h is conviction and sentence under 18 U. S

. C § 2 2 5 2(a)(2) for receipt of material involving the sex ual

ex p loitation of minors. Specifically
, V al l ejos appeals the district court’s decision to deny his r e quests that (1) his unedited c onfession be shown to the jury under t h e Rule o f Completene s s , F ed. R. Evid. 106, and (2) the jury be instructed on the lesser-included charg e o f possession of child
pornog raphy

. He also appeals the d istrict court’s a pplication of a sentencing enhancement for distribution. See U.S. Sentencing Guidelines Manual § 2G2.2(b)(3)(F ). W e have jurisdiction under 28 U.S.C. § 1291, and we affirm.U N I T E D S T A T E S V

. V A L L E J O S 4

On September 16, 2010, police detective Arthur H ive l y (“Detective Hively ”) used a computer prog ram to discover that V allejos was making available on a peer-to-peer fi l e

sharing network doz ens of files w hose names “ were consistent with child p ornog raphy

. ” Detective Hively downloaded three o f these files and confirmed that they were pornog raphic imag es of children.

Three weeks later
, p olice o fficers ex ecuting a search
warrant discovered doz ens of child pornog raphy imag es a nd videos, and a peer-to-peer f ile sharing prog r a m c alled L imeW ir e, on V allejos’s computer. 1 During a forensic

ex a mination o f Vallejos’s computer, Detective Hively f ound

s o m e of the imag es he had downloaded as part of his initi al investig ation the previous month. After the search, Vallejos admitted to officers that “he was responsible for t h e c h i l d
pornog raphy that was o n the computer , ” a n d he voluntarily
g ave the police an audio- and video-r e corded statement to that effect. The district court play e d an e dited version of this
statement at trial. After a two-day trial, a jury found Vallejos
g uilty o f receipt of material involving the sex ual ex ploitation of minors, in violation of 18 U.S.C. § 2252(a)(2).

The pre-sentence report recommended a sentence o f 235 months, based on an o f

fe n se level of 35, a criminal history categ ory of I V, and a Sentencing Guidelines rang e o f 235 months to 293 months. At i s s u e h ere is a two-level

e n h a n c e m e n t f

o r “ d i s t r i b u t i o n ” u n d e r U

. S

. S

. G

. § 2G2.2(b)(3)(F ) in lig ht of Vallejos’s use o f a peer-to-peer

1 A t t rial, Detectiv e H iv ely testif ied ab o u t th e o p eratio n o f Li m e W i re. Sp ecif ically
, h e ex p lain ed th at o n e o f th e p ro g ram ’ s d ef au lt settin g s is

su ch th at f

iles d o w n lo ad ed to a u ser’ s “ sh ared f o ld er” are “ sh ared w i th

an y b o d y . . . o n th e p eer- t o

- p eer n etw o rk sy stem .”U N I T E D S T A T E S V

. V A L L E J O S 5

f i le sharing network. 2 The district c ourt adopted the p r e

sentence report’s calculations, considered t h e 18 U .S.C. § 3553 factors, and sentenced Vallejos to 1 8 8 m onths imprisonment—nearly 50 months shy of the low e nd of the Guidelines rang e —and 180 months of supervised release.

I

W e r eview the district court’s d e cision on the Rule o f Completene s s f

o r an abuse o f discretion. See United States

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

novo wh e ther possession is a lesser-included offense o f receipt, but we review for an abuse of discretion the d i s t rict court’s decision not to inst r u ct the jury on possession. See U nited States v. Rivera-Alonzo
, 584 F .3d 829, 832 ( 9th C i r. 20 0 9 )

. We review the district c ourt’s interpretation of the Sentencing Guidelines de novo , its a p p l i cation o f the Guidelines to the facts of the case f or an abuse of discretion, and its fac t u a l f

i n d ing s f or clear error. See United S tates v

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

II

F ederal Rule of Evidence 106 codified the common law R u l e o f C o m p l e t e n e s s , w h i c h e x i s t s t o a v e r t “misunderstanding or d istortion” c aused by introduction o f

2 T h e G o v ern m en t req u ested th i s en h an cem en t f o r “ d istrib u tio n ,” d esp i te Vallej o s’ s co n

v i ctio n f o r “ rec e ip t ,” o n th e t

h eo ry th at w

h en Detectiv e Hiv ely d o w

n lo ad ed so m e o f t

h e ch ild p o rn o g rap h y lo cated o n Vallej o s’ s

co m pu ter, V a l l ej o s ef

f ectiv ely “ d i strib u ted ” t

h o se f iles to Detectiv e Hiv ely

. In o th er w o rd s, th e Go v ern m en t arg u ed
, Vallej o s’ s k n o w in g u s e

o f a p eer- to

- p eer f

ile- sh arin g pro g ram

—w h ich ex p licitly w arn ed its u sers:

“ F iles in y ou r p u

b lic sh ared list are s h ared w ith th e w o rld ”—co n stitu ted b o th receip t an d d istrib u tio n

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

. V A L L E J O S 6

only part of a docum e nt. Beech Aircraft Corp. v

. Rainey
, 488 U.S. 153, 172 ( 1988); see also Fe d

. R

. Evid. 106 (“I f a party introduces all or p art o f a writing or recorded statement,

an adverse party may require the introduction, a t that time, o f
any other part—or any other writing or recorded statement—that in fairness oug ht to b e considered at the same time.”). T he Rule does not, however, require the introduction of any unedited writing or statement merely because an adverse p arty has introduced an edited version. Rather, “it is often perf ec t l y proper to admit seg ments of prior testimony without including every

thing
, a n d adverse parties are not enti t l e d to offer additional seg ments just because they a re there and the proponent has not o ffered them. ” Collicott
, 92 F .3d at 9 8 3 ( i n t ernal quotation marks omitted). I n other words, if the “complete statement [ does] not serve to correct

a misleading impression” in th e e d i t ed statement that is created by taking something out o f contex t, the Rule o f Completeness will not be applied to a dmit the full statement. Id. ; see also United States v. Dorrell
, 758 F .2d 427, 434–35 (9th Cir. 1985) (finding no Rule of Co m p leteness violation where the edited version o f a confession did not “distort[ ] the meaning o f t h e statement” (internal quotation marks omitted)).

Vallejos contends that the r e d a cted version of his confession misled the jury because it left o ut parts concerning
, among other thing s, his p rior prison sentence, his drug history
, a

nd his church. This arg ument misunderstands the Rule’s purpose. The d istrict court properly concluded that the Rule of Completeness is n o t s o broad as to require the admission of all redacted p ortions of a statement, without
reg ard to content. See Collicott
, 92 F .3d at 983. The district
court ex plained that “[

j] ust because somebody is putting in part of a transcript

. . . d o e s not mean for the sake o fU N I T E D S T A T E S V

. V A L L E J O S 7

completeness, every

thing c omes in,” and it properly rejected Vallejos’s arg ument that the redacted portio n s s h ould be admitted to show the jury the “ fl av o r o f the interview,” to “humaniz e” Vallejos, to prove his “character,” and to convey to the jury the voluntariness o f the statement. The district
court did not abuse its discretion when it d e t e rmined tha t—while this evidence mig ht be relevant to “sy mpathy ” and se n t e n cing

—the redacted statement was not misleading and therefore that the Rule of Completeness did not require admission of the full statement into evidence. S e e id.

III

The d istrict court also did not abuse its discretion when it declined to instruct the jury on possession. Possessi o n o f child pornog raphy under 18 U.S.C. § 2 252(a)(4) is a l e s s erincluded offense of receipt o f ch ild pornog raphy under 1 8 U

. S .C. § 2252(a)(2). See, e

. g. , United States v. Schales
, 546 F

. 3d 965, 977 ( 9th C i r

. 2008); United S tates v

. Davenport
, 519 F .3d 94 0
, 945 (9th Cir. 2008). B ut a defendant w ho is charg ed with r eceipt o f child pornog raphy is entitled to an instruction on possession o nly “ i f t h e evidence would permit a jury rationally to find him g uilty o f [ possession] a

nd acqui t h i m o f [ receipt] .” Keeble v. United States
, 412 U .S. 205, 20 8 ( 1 973); see also United States v

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

Vallejos admitted at trial that h e “received many imag e s of child porn o gr a phy ” and that he viewed both p hotos a nd videos on his c omputer. Nonetheless, he asked the court to instruct the jury that it could find him g uilty of possession o f child pornog raphy if it did not find him g uilty of r eceipt bey ond a r easonable d oubt. The district court properly denied Vallejos’s request, n oting t h a t it was “undisputed” thatU N I T E D S T A T E S V

. V A L L E J O S 8

Vallejos “ received” child pornog raphy

. R eceipt of child
pornog raphy

requires the same elements as possession, with

an additional element of “knowing acceptance o r t a king

. ” Davenport
, 519 F .3d at 943. There was clear and undisputed evidence that V a l l ejos knew h e was downloading child
pornog raphy

—indeed, there were m u l tiple admissions from him to that effect. W e conclude that no ration al jury could have found Vallejos g uilty of possession but acquitted him o f receipt.

IV

W e turn now to Vallejos’s final arg ument that, u nder the rule of Apprendi v

. New Jersey
, 530 U.S. 466 (2000), a nd Blakely v. W

a shington
, 542 U.S. 296 (2004), his distribution enhancement was unconstitutional because a defendant may be sentenced only upon the e lements of an o f f e n s e to which he has pleaded g uilty or which were proven at trial. Vallejos
arg ues that b ecause “he had no intent t o d i s tribute” child
pornog raphy
, the district court should have calculated his
sentence using an offense level consistent with receipt, rather than one consistent with r eceipt plus a n enhance m e n t for distribution. 3

“Any fact

. . . necessary to support a sentence ex ceeding the max imum authoriz ed by the facts

. . . must be admitted b y the defendant or proved to a jury bey o nd a reasonable doubt.” United States v. Booker
, 543 U.S. 220, 244 (2005). However, “[ w] hen a trial judg e ex ercis e s h i s discretion to select a

3 Distrib u tio n , acco rd in g to Vallej o s, is n o t “ p ro v en b y a p erso n o p en in g

a L im eW ire f

i le”; rath er, i t “ req u i res a k n o w in g f act,

. . . an activ e ab ility
to reach o u t to an o th er an d g iv e t o so m eo n e, sell t o so m eo n e, d istrib u te to

so m eo n e, n o t sim

p ly to sit in h is liv in g ro o m

an d lo o k at so m eth in g .”U N I T E D S T A T E S V

. V A L L E J O S 9

specific sentence within a defined rang e, the defendant has no rig ht to a jury determination o f the facts that the judg e deems relevant.” Id. at 233. And if a p a r t i c u l ar fact is not an “element or ing redient o f the charg ed offense,” it need not be found by a jury bey o nd a reasonable doubt. Alleyne v. United S tates , 133 S. Ct. 2151, 2158 (2013) (internal quotation marks omitted).

Vallejos misunderstands the law. The d istribution

en h ancement affected neither the statutory max imum
sentence nor any mandatory minimum sentence; thus, neither Apprendi nor A lleyne v

. United States is i mplicated. See id.
at 2163 (holding that judicial factfinding in imposing a judg ment within the range p r escribed by statute does not violate the Six th Amendment). The district court corr e c t ly calculated Vallejos’s base offense level as 22. See U.S.S.G. § 2G2.2(a). After several uncontested enhancements 4 and a two-level decrease for a c c e p t a n c e o f r e s ponsibility
, Vallejos’s

o f f ense level stood at 3 3. T he d istrict court then ap p l i ed a two-level d i stribution e nhancement on the theory that Vallejos “affirmatively installed a peer-to-peer file sharing network,” which, “by its v ery nature,” al l o w s one b oth to “re c e i v e” a n d t o “ d i s t r i b u t e ” m a t e r i a l

. S ee i d. § 2G2.2(b)(3)(F ). B ecause the e ffect of using a file-sharing
prog r am “is to r eceive and to send o ut,” the district court concluded that there w as a “ d istribution aspect” to Vallejos’s actions.

4 T h e d i s t r i c t c o u rt ap p lied in creases f o r: m aterial in v o lv in g a p rep u b escen t m in o r (+2 ); m aterial p o r t r a y in g sad istic o r m aso ch istic

co n d u ct o r o t

h er d ep ictio n s o f v io len ce (+4 ); th e u se o f a co m p u ter f o r th e p o ssessio n , tran s m issio n , receip t, o r d istrib u tio n o f th e m aterial (+2 ); an d th e receip t

o f m ore th an

6 0 0 im ag es (+5 ). S

ee id

. § 2 G2 .2 (a)– (b ).U N I T E D S T A T E S V

. V A L L E J O S 10

W e have not y et addre s s e d whether the use of a filesharing prog ram to download child po r n og raphy
, without
more, is sufficient to sustain a sentencing enhancement for distribution under U.S.S.G. § 2G 2

. 2 ( b)(3)(F ) upon a

c o nviction for receipt. W e have, however, previously h e l d that “evidence of a deliberate, affirmative action of delivery ” is not required to sustain a conviction f o r distribution of child
pornog raphy under 18 U.S.C § 2252(a)(2). United S t a t e s v

. Budziak
, 697 F .3d 1 105, 1108–09 (9th Cir. 2012). Rather, we held, “evidence is sufficient to support a conviction for distribution

. . . when it shows that the d e fendant maintained child pornog r aphy i n a s h ared folder, knew that doing so

w o u l d allow others to download it, and another person actually downloaded it.” Id. at 1109 (internal citation omitted).

I n similar c ases, two of our sister circuits h av e h e ld that the mere use of a file-sharing prog ram to download child
pornog raphy is enoug h to warrant the two-l e vel distribution enhancement. See U

nited States v. Ray
, 704 F .3d 1307, 1311–12 ( 10th Cir. 2 013) ( “§ 2G2.2(b)(3)(F ) does not require that a defendant know about the distribution capability of the
prog r am he is using to view child pornog raphy .”); U n ited States v

. Layton
, 564 F .3d 330, 335 (4th Cir. 2009) (“[ U] se o f a peer-to-peer file sharing prog ram c onstitutes ‘distribution’ for the purposes of U.S.S.G. § 2G2.2(b)(3)(F ).”).

Th e s e c ircuits, a s well as others, have endorsed applications of the enhancement in similar circumstances a nd
ag ree that “an intent to distribute is n ot required for an act to qualify as ‘distribution’ under § 2G2.2(b).” United S tates v

. Ramos
, 695 F .3d 1035, 1041 (10th Cir. 2012); see also, e.g. , United S tates v. McManus
, 734 F .3d 315, 319 (4th Cir. 2 013) ( “ § 2G2.2(b)(3)(F ) is a r esidual enhancement” that ma y b eU N I T E D S T A T E S V

. V A L L E J O S 11

a p p l ied “when a defendant knowing ly permits others t o

access and retrieve child pornog raphy files in the defendant’s possession, even if he d oes so passively .”); United S tates v

. Reingold
, 731 F .3d 204, 2 29–30 ( 2 d Cir. 2 013) (“[ K] n owing ly placing ch i l d p ornog raphy files in a shared folder o n a peer-to-peer file-sharing network constitutes distribution

. . . even if no one a ctually obtains a n imag e from the f older” and “without reg ard to w hether the def e n d a n t ’s primary p urpose in placing child pornog raphy files in a filesharing prog ram was to rec e i v e o r to distribute child
pornog raphy .”); United S tates v

. Chiaradio
, 684 F .3d 265, 282 (1st Cir. 2012) (“The fact t hat the defendant did not actively e lect t o transmit those files is irrelevant.”); United States v

. Bolton
, 669 F .3d 7 80 (6th Cir. 2012); United States

v. Spriggs
, 666 F

. 3d 1 2 8 4
, 1287 (11th Cir. 2 0 12) (“[ T ] o establish distribution, the g overnment d oes not need to prove that another user actually downloaded a file from [the user’s] computer.

. . . W hen the user knowi n gl y makes the f iles accessible to others, the distribution is complete.”); U n i t ed S t a t e s v. Carani
, 4 92 F .3d 8 67, 875–76 (7th Cir. 2007) (noting that the “passive nature” of the f ile-sharing prog ram is “irrelevant” to the propriety o f a distribution enhancement (internal quotation marks omitted)).

Courts have, however, occ a s ionally been reluctant to apply the d istribution enhancement based solely on the use o f a file-sharing

prog ram. S

ee, e.g. , U

nited States v. Robinson
, 714 F .3d 466, 468 (7th Cir. 20 1 3 ) ( “ [ T] he sentencing judg e

m ust f ind that the defendant either knew, or was reckless i n failing to discover, that the files he was downloading could be viewed online by other p eop l e.”); United States v. Durham
, 618 F .3d 921, 931 ( 8 th C i r

. 2 010) (“[ W ] e have ex plicitly rejected any sug g estion we automatically apply a distribution enhancement b ased merely on a d e fendant’s use of a file-U N I T E D S T A T E S V

. V A L L E J O S 12

s h a r i ng prog ram.”). Nonetheless, even the Eig hth Circuit
, which has a dopted a case-by -case app r o ac h to the enhancement, reg ularly a pplies it to defendants who, like V allejos, demonstrate even minimal knowledg e about t h e operation of file-sharing prog rams. See, e.g. , United States v

. Glassgow
, 6 82 F

. 3d 1107, 1 1 10 (8th Cir. 2012) (“[ I ]f a def endant u ses a file-sharing prog ram, a fact-finder may reasonably infer he intended to distribute files, unless there is
concrete evidence of ig norance.” (internal quotat ion marks omitted)); United States v. Dodd
, 598 F .3d 4 4 9, 452–53 (8th Cir. 2 010) (“[ D] istribution as defined in § 2G2

. 2 i n c ludes operating a file sharing prog ram t h a t enables other participating use r s t o access and download files placed in a shared folder, and then placing child p ornog raphy files in that folder.”).

F ollowing at least eig ht of our sister circuits, w e hold that the knowing u se of a file-sharing prog ram to download child
pornog raphy involves not merely the receipt of i l licit material, but also the r eciprocal d istr i b u t i on of it. W e therefore conclude that the district cou rt p roperly a pplied a t w o

- l e v e l d i s t ri b u t i o n e n h a n c e m e n t u n d e r U

. S

. S

. G

. § 2G2.2(b)(3)(F ) to Vallej os, who u sed a file-sharing prog ram to download child p ornog raphy that, w hether knowing ly o r unknowing ly , allowed others access to those files. 5

5 W e n eed n o t d ecid e in th is case w h et h e r i g n o ran ce can d ef eat th e

en h an cem en t. In U

n ited S ta tes v. Du r

h a m , f or ex am p le, th e Eig h th Circu i t d eclin ed to ap p ly th e en h an cem en t to a d ef en d an t w h o n eith er in stalled th e f ile- sh arin g p ro g ram o n h is co m p u ter n or k

n ew h o w to o p erate it. 6 1 8 F.3 d at 9 2 8

. B ecau se Vallej o s in stalled L im eW ire an d k n ew h o w to

u se th e p ro g ram , w e n eed n o t elab o ra t e h e r e o n w h at sp ecif ically m ay

co n stitu te ev id en ce s u f

f icien t to av oid ap p licatio n o f th e en h an cem en t. It is en o u g h to o b serv e th at Vallej o s d id n o t p resen t ev id en ce th at h e h ad so little k n ow led g e o f h o w L im eW i re w o rk ed as w ou ld u n m istak ab ly n eg ateU N I T E D S T A T E S V

. V A L L E J O S 13

W e also join our sister circuits in h o l ding that it matters not, for purposes of the enhancement, whether someone else actually downloads a file from the d efendant’s computer. See Spriggs
, 666 F .3d at 1 287. Our holding is consistent with the plain lang uag e of the Sentencing Guidelines, which are silent with respect to intent, and which d efine “distribution” broadly

as “any a ct, incl u d i n g

. . . transmission,

. . . related to the transfer of mate r i a l i nvolving the sex ual ex ploitation of a minor.” U.S.S.G. § 2G2.2 cmt. n.1.

Vallejos u nderstood how L imeW ire operated. He testified at trial that he initially downloaded th e f i l e -sharing
p rog ram “for music” but that he “came across” c h i l d
p o r nog raphy while using L imeW ire to view adu l t pornog raphy

. He said that c h i l d pornog raphy “piqued his interest” a

nd that he beg an to “copy information fr o m c h ild
pornog raphy files

. . . and use information in those titles to search for other files.” He testified a bout the search terms he used to “g et more c hild p ornog raphy ,” and he ex plained that he g enerally d eleted imag e s after v iewing them. F inally
, a s Detective Hively testified a t trial, L imeW ire ex plicitly warned its users: “F iles in y o ur pub l i c s h a r ed list a re shared with the world.” The district court did not abuse its discretion when it appl i e d a two-level distribution enhancement in calculatingVallejos’s sentence.

Nor d id the district court misread the Sen t e n cing Guidelines, which ex plicitly a u t horiz e a distribution

e nhancement for defendants convicted of “Receiving
, Transport i ng , Shipping
, Soliciting
, or A dvertising Material I nvolv i ng the Sex u a l Ex p loitation of a Minor.” Id. § 2 G2.2

h is p resu m ed in ten t to d i strib u te th e ch i ld p o rn o g rap h y f iles on h is

co m pu ter to all L im eW ire u sers.U N I T E D S T A T E S V

. V A L L E J O S 14

( e m p hasis a dded). I t is irrelevant that facts supporting t h e enhancement were n either alleg e d in t h e i n dictment nor p r o v e n to the jury bey ond a reasonable doubt. B ecause t h e di s t r i ct court found b y a preponderance of the evidence that Vallejos distributed child pornog r aphy
, it was authoriz ed to apply the distribution enhancement. S ee United States v

. Riley
, 335 F .3d 919, 925 (9th Cir. 2003) (“Generally
, f actual finding s unde r ly ing sentence enhancements must be supported by a preponderance of the evidence.”).

AF F IRMED.