USA v. Eric Vallejo

Filing

FILED OPINION (MICHAEL DALY HAWKINS, RONALD M. GOULD and RICHARD A. PAEZ) AFFIRMED. Judge: RMG Authoring, FILED AND ENTERED JUDGMENT. [8971707]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

No. 13-10025

v.

D.C. No.
1:11-cr-00171-LJO-1

ERIC PAUL VALLEJOS,
Defendant-Appellant.

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

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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.

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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.

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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.”

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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.

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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 properly concluded 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

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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

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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.”

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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 any mandatory minimum 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 enhancements4 and a
two-level decrease for acceptance of responsibility, 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).

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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

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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-

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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. In United States v. Durham, for example, the Eighth Circuit
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

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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.

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(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.

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