Argued and Submitted December 2, 2013, San Francisco, California
Appeal from the United States District Court for the Eastern District of California. D.C. No. 1:11-cr-00171-LJO-1. Lawrence J. O'Neill, District Judge, Presiding.
Ann H. McGlenon (argued), Assistant Federal Defender, Heather Williams, Federal Defender, Joseph Schlesinger, Acting Federal Defender, Fresno, California, for Defendant-Appellant.
David L. Gappa (argued) and Megan A.S. Richards, Assistant United States Attorneys; Benjamin B. Wagner, United States Attorney, Fresno, California, for Plaintiff-Appellee.
Before: Michael Daly Hawkins, Ronald M. Gould, and Richard A. Paez, Circuit Judges.
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.
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 file-sharing 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. 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 file sharing network. The district court adopted the pre-sentence 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 ...