FILED
NOT FOR PUBLICATION JAN 04 2012
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 10-10003
Plaintiff - Appellee,
D.C. No. 1:07-cr-00293-AWI
v.
JAMES ERIC SCHEIDT, MEMORANDUM *
Defendant - Appellant.
Appeal from the United States District Court
for the Eastern District of California
Anthony W. Ishii, Chief Judge, Presiding
Submitted December 19, 2011 **
Before: GOODWIN, WALLACE, and McKEOWN, Circuit Judges.
James Eric Scheidt appeals from the 324-month sentence imposed following
his guilty-plea conviction for receipt or distribution of material involving the
sexual exploitation of minors, in violation of 18 U.S.C. § 2252(a)(2). We have
jurisdiction under 28 U.S.C. § 1291, and we vacate and remand.
Scheidt contends that the district court plainly erred by including, in its
calculation of his advisory Sentencing Guidelines range, four points related to
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
distribution of child pornography under U.S.S.G. §§ 2G2.2(b)(1) and
2G2.2(b)(3)(F). We have not yet resolved the issue of whether the use of a file-
sharing program, without more, can support the award of distribution points under
section 2G2.2(b). Accordingly, any error on the district court’s part cannot be
deemed to have been plain. See United States v. Olano, 507 U.S. 725, 734 (1993)
(no plain error unless error is clear under “current law”); United States v.
Thompson, 82 F.3d 849, 856 (9th Cir. 1996) (“Because of the circuit split, the lack
of controlling authority, and the fact that there is at least some room for doubt
about the outcome of this issue, we cannot brand the court’s failure to exclude the
evidence ‘plain error.’”). Nonetheless, the government concedes that there was
error and that it would have conceded the distribution issue had counsel objected at
sentencing. Accordingly, the better course is for us to remand for consideration of
this issue in the first instance.
Scheidt also contends that the district court’s restitution order should be
vacated, as there was no evidence that his crime proximately caused quantifiable
losses, or indeed any losses, to the named victims. After the entry of judgment
below, we decided United States v. Kennedy, 643 F.3d 1251 (9th Cir. 2011), which
set forth a framework for analyzing mandatory restitution orders under
2 10-10003
18 U.S.C. § 2259. On remand, the district court shall revisit its restitution order in
light of the framework set forth in Kennedy.
In view of the remand, it is unnecessary to reach Scheidt’s remaining
contentions.
VACATED and REMANDED.
3 10-10003