United States v. Shaun King

FILED
NOT FOR PUBLICATION MAY 13 2010

MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 09-50063

Plaintiff - Appellee, D.C. No. 8:07-cr-0030-JVS-1

SHAUN KING,
MEMORANDUM *
Defendant - Appellant.

Appeal from the United States District Court
for the Central District of California
James V. Selna, District Judge, Presiding

Argued and Submitted March 1, 2010
Pasadena, California

Before: CANBY and W. FLETCHER, Circuit Judges, and TUNHEIM, **
District Judge.

Shaun King appeals from the seventy-month sentence and life-term of

supervised release imposed following his guilty plea to one count of possession of

child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B). We have

*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable John R. Tunheim, United States District Judge for the
District of Minnesota, sitting by designation.
jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742, and we affirm in

part and vacate and remand in part for resentencing.

King argues that the district court failed to adequately explain the reasons

for the sentence imposed and failed to consider King’s arguments at sentencing.

We disagree. The district court sufficiently explained its sentence “to permit

meaningful appellate review.” See United States v. Carty, 520 F.3d 984, 992 (9 th

Cir. 2008) (en banc); United States v. Mix, 457 F.3d 906, 912 (9 th Cir. 2006). The

record demonstrates that the district court also properly considered King’s

arguments at sentencing. See Rita v. United States, 551 U.S. 338, 356-57 (2007).

King argues that the district court erred by applying a four-level

enhancement, pursuant to U.S.S.G. § 2G2.2(b)(7), because the preponderance of

the evidence did not support a finding that his offense involved the possession of

300 or more images of child pornography. We agree that the summary of the

probation officer’s discussion with the case agent in the presentence investigation

report lacks sufficient indicia of reliability to support a finding that the offense

involved 300 or more images of child pornography. See U.S.S.G. § 6A1.3 & cmt.;

United States v. Ameline, 409 F.3d 1073, 1085-86 (9 th Cir. 2005) (en banc). There

was inadequate information in the record from which the district court could

conclude that the case agent had the qualifications to evaluate and define which

2
images constituted child pornography as opposed to child erotica or adult

pornography. Cf. United States v. Overton, 573 F.3d 679, 686-87 (9 th Cir. 2009).

The district court’s error was not harmless because it is not clear that the

district court would have imposed the same sentence had it properly found facts

supporting the sentencing enhancement. See United States v. Showalter, 569 F.3d

1150, 1160 (9 th Cir. 2009); United States v. Cantrell, 433 F.3d 1269, 1280 n.4 (9 th

Cir. 2006). Accordingly, we vacate King’s sentence and remand for resentencing

for factual findings consistent with this opinion.

Because the district court clearly erred in finding facts relating to the number

of images involved in the offense, we do not reach the question of whether the

sentence was substantively reasonable. United States v. Grissom, 525 F.3d 691,

696 (9 th Cir. 2008).

King argues that the life-term of supervised release is substantively

unreasonable. The district court considered both King’s arguments at sentencing

and the statutory sentencing objectives under 18 U.S.C. § 3553(a). See United

States v. Daniels, 541 F.3d 915, 922 (9 th Cir. 2008). A life-term of supervised

release is substantively reasonable under the totality of the circumstances. Id. at

923-24; see also United States v. Cope, 527 F.3d 944, 952 (9 th Cir. 2008).

AFFIRMED in part, and VACATED and REMANDED in part.