USA v. Roger Roybal

Filing

FILED OPINION (MILAN D. SMITH, JR., ANDREW D. HURWITZ and JAMES C. MAHAN) AFFIRMED. Judge: JCM Authoring. FILED AND ENTERED JUDGMENT. [8895252]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

No. 12-30350

v.

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

ROGER ALLAN ROYBAL,
Defendant-Appellant.

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.

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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.

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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

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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

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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

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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

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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).

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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

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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.