FILED
NOT FOR PUBLICATION NOV 19 2009
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. 08-10575
Plaintiff - Appellee, D.C. No. CR-07-00603-JW-1
v.
MEMORANDUM *
KENNETH VAN AALSBURG,
Defendant - Appellant.
Appeal from the United States District Court
for the Northern District of California
James Ware, District Judge, Presiding
Argued and Submitted November 4, 2009
San Francisco, California
Before: B. FLETCHER, CANBY, and GRABER, Circuit Judges.
Defendant Kenneth Van Aalsburg pleaded guilty to possession of child
pornography in violation of 18 U.S.C. § 2252(a)(4)(B). He appeals from the
district court’s application of certain sentencing enhancements. We conclude that
the sentencing enhancements were properly applied and, thus, affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
1. Defendant first contends that the district court erred by applying a
"preponderance of the evidence" standard because the disputed sentencing
enhancements had a disproportionate effect on his sentence. United States v.
Jordan, 256 F.3d 922, 928 (9th Cir. 2001). We hold that any error was harmless
beyond a reasonable doubt because clear and convincing evidence supported the
disputed enhancements. See United States v. Mezas de Jesus, 217 F.3d 638, 642
(9th Cir. 2000) (stating harmless error standard).
2. We review de novo the district court’s interpretation of the Sentencing
Guidelines, and we review for clear error the district court’s findings of fact.
United States v. Garro, 517 F.3d 1163, 1167 (9th Cir. 2008). "We have noted an
intracircuit conflict regarding whether we review application of the Guidelines to
the facts for an abuse of discretion or de novo." United States v. Rivera, 527 F.3d
891, 908 (9th Cir.), cert. denied, 129 S. Ct. 654 (2008). Again, though, the choice
of a standard does not affect the outcome here, because the district court properly
applied the sentencing enhancements.
There was sufficient evidence that Defendant possessed more than 600
images of actual children engaged in sexually explicit conduct. All 7000 images
were in Defendant’s possession even though some of the images had been deleted
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or otherwise placed in "lost space" on Defendant’s computer drive. And actual
children need not be specifically identified.
There was also sufficient evidence that Defendant possessed material
involving prepubescent minors and material displaying sadistic or masochistic
conduct. First, Defendant admitted to possessing such material at the time that he
pleaded guilty. Second, there was testimony that some images of these types
depicted actual, identified children engaged in sexual conduct. Third, the district
court itself viewed some images.
The government did not have to prove that the children depicted were still
alive at the time of the offense. Child pornography is unprotected speech not only
because of the ongoing harm inflicted on children by the "permanent record" of
their suffering, but also because of the harm involved in its production. Ashcroft v.
Free Speech Coalition, 535 U.S. 234, 249-50 (2002) (citing New York v. Ferber,
458 U.S. 747, 759-60 (1982)).
AFFIRMED.
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