United States v. Jaime Bibo-Lopez , 608 F. App'x 450 ( 2015 )

FILED
NOT FOR PUBLICATION JUN 25 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 13-50602
Plaintiff - Appellee, D.C. No. 3:13-cr-01988-GPC-1
v.
MEMORANDUM*
JAIME BIBO-LOPEZ,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
Gonzalo P. Curiel, District Judge, Presiding
Argued and Submitted March 6, 2015
Pasadena, California
Submission Vacated March 11, 2015
Resubmitted June 25, 2015
Before: REINHARDT, N.R. SMITH, and HURWITZ, Circuit Judges.
Jaime Bibo-Lopez1 pleaded guilty to one count of distributing visual
depictions of a minor engaged in sexually explicit conduct in violation of 18
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
1
The defendant-appellant is referred to throughout the briefs as Bibo; that
name is used here.
U.S.C. § 2252(a)(2). The district court sentenced Bibo to six years in custody and
ten years of supervised release. Bibo argues that the district court committed
procedural errors in deciding the length of his custody and the terms of two of the
conditions of his supervised release. We agree.
A district court commits a procedural error if it bases its sentence on “clearly
erroneous facts.” United States v. Carty, 520 F.3d 984, 993 (9th Cir. 2008) (en
banc). A factual finding is clearly erroneous if it is “without support in the record.”
United States v. Graf, 610 F.3d 1148, 1157 (9th Cir. 2010). When the district court
relies on a clearly erroneous factual conclusion in deciding a sentence, we vacate
and remand for resentencing, even when other factors might have supported the
sentence. United States v. Burgum, 633 F.3d 810, 816 (9th Cir. 2011).
The district court sentenced Bibo above the mandatory minimum based in
part on the “real” risk that he would “graduate from the observation of [child
pornography] to actual conduct.” Bibo correctly asserts that the district court’s
finding had no support in the record and thus was clearly erroneous. Bibo
introduced evidence that he did not present a risk of “graduating” and the
government did not present any evidence that he did. The government now points
to studies showing that some child pornography offenders pose a greater risk than
members of the public at large to commit contact sex offenses, but it did not cite
2
these studies before the district court. Without commenting on the relevance or
weight of the studies, we hold that they may not be used to support the sentence in
this case because they were not part of the record before the district court.
Accordingly, we vacate and remand the sentence.
Although we remand the entirety of Bibo’s sentence on the basis of the
above procedural error, in the interest of avoiding needless additional litigation we
briefly address Bibo’s other objections to his sentence. Condition 12 of Bibo’s
supervised release requires him to complete “a sex offender evaluation, which may
include periodic . . . physiological testing.” Bibo argues that this could include
penile plethysmography testing.2 The government concedes that Condition 12 does
not allow for plethysmography testing, and the district court could not have
authorized plethysmography testing without making additional factual findings.
United States v. Weber, 451 F.3d 552, 568-69 (9th Cir. 2006). Assuming the
district court imposes a similar restriction to Condition 12 on remand, it should
make explicit what was implicit before: the condition does not include penile
plethysmography testing.
2
“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, 552 (9th Cir. 2006) (internal quotation marks omitted).
3
Bibo also asserts that the district court erred by imposing Condition 9, which
prevents him from possessing any material that “depicts ‘sexually active
conduct’ . . . as defined by 18 U.S.C. § 2256(2)” involving adults. Bibo contends
that this condition sweeps in not only adult pornography, but a wide swath of
mainstream, non-pornographic films, television shows, literature, and other media.
He argues that Condition 9 therefore implicates significant First Amendment
interests and should be subject to the articulation requirement outlined in Weber.
451 F.3d at 561.
We recently confronted an almost identical condition of supervised release
in United States v. Gnirke, 775 F.3d 1155, 1158 (9th Cir. 2015). In that case we did
not reach the question of whether Condition 9 as written triggered the articulation
requirement because we construed language identical to Condition 9 as limited to
pornography. Id. at 1166. Under this narrower reading, we found that limiting
Gnirke’s access to adult pornography did not infringe a significant liberty interest.
Id. at 1160. As in Gnirke, the district court here was concerned that viewing adult
pornography would lead Bibo back to viewing child pornography. On remand,
assuming the district court again imposes a condition of supervised release similar
to Condition 9, it should make clear that the condition is limited to the restriction
as upheld in Gnirke.
4
Sentence Vacated and Remanded.
5
FILED
JUN 25 2015
N.R. Smith, Circuit Judge, dissenting:
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
On appeal, Bibo only challenges the procedural reasonableness of his
sentence, alleging that the district court’s conclusion that there was “some reason
to believe” Bibo might graduate to a contact offense was clearly erroneous.
Under United States v. Carty, we review a sentence for procedural
reasonableness, including whether the district court chose “a sentence based on
clearly erroneous facts.” 520 F.3d 984, 993 (9th Cir. 2008). When we review for
clear error, we will reverse only if there is no evidence in the record to support the
district court’s finding, or if we are “left with the definite and firm conviction that a
mistake has been committed.” United States v. Christensen, 732 F.3d 1094, 1103
(9th Cir. 2013) (citation omitted). “Where there are two permissible views of the
evidence, the factfinder’s choice between them cannot be clearly erroneous.”
United States v. Elliot, 322 F.3d 710, 715 (9th Cir. 2003) (citation omitted).
Bibo moved the district court to vary downward from the applicable
Guidelines range to the statutory minimum. The district court agreed to vary
downward, but not to the extent Bibo requested. The district court justified the
sentence it imposed, because “there [was] some reason to believe that individuals
who obtain gratification from viewing these photographs and videos are on the
path to themselves engaging in the form of conduct that’s depicted.” The court
1
further noted that, in its experience, “individuals who engage in the monitoring and
viewing of these photographs graduate.” With regard to the specific risk that Bibo
himself would “graduate” to a contact offense, the district court said it was
“impossible” to know; the higher sentence was merely a precaution.
In order for Bibo’s sentence to be procedurally reasonable, there need only
have been “some evidence” in the record from which the district court could
conclude that there was a risk that Bibo might commit a contact offense against a
child in the future. See United States v. Gadson, 763 F.3d 1189, 1220 (9th Cir.
2014). We are not called upon, as the majority mistakenly suggests, to determine
whether the degree of risk justified the district court’s decision not to vary down to
the mandatory minimum. The majority’s conclusion that the district court’s
finding was clearly erroneous is at odds with the record and our precedent.
Therefore, I respectfully dissent.
In this appeal, Bibo has to demonstrate either (1) that there was no basis for
the district court’s conclusions or (2) that his studies unequivocally demonstrated
that no such link exists. He failed on both counts, and his sentence should be
affirmed. Bibo contends that he provided studies to the district court showing that
there was no risk that he would “graduate,” based solely on the fact that he viewed
and possessed child pornography. However, even a cursory examination of Bibo’s
2
materials shows that the opposite is true.
Bibo first cited an article that plainly recognized that, before the internet,
between one-fifth and one-third of offenders in possession of child pornography
were also abusers. While the emergence of the internet may have diminished these
numbers, there was nothing in the materials that Bibo provided to show that the
risk has been extinguished. Indeed, the second article cited by Bibo noted only that
“[a] history of viewing child porn is not itself a strong indicator” of whether an
offender will go on to abuse children. Contrary to Bibo’s assertions, none of his
cited materials supported his assertion that “it is a myth that there is a link between
casual viewing of child pornography and abusing children.” This statement is
merely Bibo’s gloss on materials that unambiguously show that a link exists
between possession of child pornography and committing contact offenses against
children. Because we are reviewing Bibo’s sentence solely for procedural
reasonableness, this evidence was sufficient to show that the district court’s actual
conclusion, that there was “some reason to believe” Bibo (as a possessor of child
pornography) might commit a contact offense in the future, was not clearly
erroneous.
The district court was entitled to draw the same conclusion from this
evidence as the court in United States v. Apodaca, 641 F.3d 1077 (9th Cir. 2011).
3
In that case (which involved a substantive reasonableness challenge), we reviewed
a similar challenge to a lifetime term of supervised release imposed following the
defendant’s conviction for possession of child pornography. Id. at 1080. The
district court justified that harsh term (much more significant than Bibo’s sentence)
as “a way of saying let’s be really safe and careful” to ensure the defendant did not
commit a contact offense in the future. Id. at 1084. In that case, the defendant also
argued that the district court failed to recognize that not all possessors of child
pornography go on to commit contact offenses.1 Id. at 1082. Ultimately, the
Apodaca court was forced to conclude that “the scientific literature falls short of”
demonstrating “that possession-only Internet child pornographers were highly
unlikely to recidivate or commit more serious sex offenses.” Id. at 1084.
The evidence to support the district court’s extremely limited conclusion is
1
I recognize that the defendant in Apodaca made this argument on the
substantive reasonableness prong. Therefore, Apodaca is not controlling.
However, the arguments in Apodaca are illustrative, in that they show Bibo’s claim
is more appropriately characterized as a challenge to the substantive
reasonableness of his sentence. Bibo’s real contention is that the district court
should have varied down to the statutory minimum, because the risk of going on to
commit a contact offense was low. Bibo has used the logic of a substantive
reasonableness challenge to accomplish a remand on a procedural challenge.
Although this approach seems to be a successful one on appeal, it will not likely
get Bibo the relief he seeks in the district court. All the majority has succeeded in
accomplishing is to ensure we will now hear procedural challenges on a
substantive reasonableness issue in cases like this one in the future.
4
in the record, and even a cursory examination of our case law demonstrates that the
conclusions the district court drew from that evidence were entirely permissible.
Under clear error review, the only issue before us is whether there was some
evidence to show that a link exists, regardless of how significant, between
possession of child pornography and a future contact offense. The evidence before
the district court, provided by Bibo himself, was unquestionably sufficient to
support the district court’s limited concern. Given our holding in Apodaca, I am
not left with a definite and firm conviction that a mistake was made. Indeed
Apodaca also demonstrates the futility of a remand in this case when the exact
same sentence will be imposed on remand with the exact same reasoning.
5