NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 18 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 20-10072
Plaintiff-Appellee, D.C. No. 1:19-cr-00012-1
v.
MEMORANDUM*
MICHAEL LOUIS MCCARRON,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Guam
Frances Tydingco-Gatewood, Chief District Judge, Presiding
Argued and Submitted January 19, 2022
Honolulu, Hawaii
Before: O’SCANNLAIN, MILLER, and LEE, Circuit Judges.
Michael McCarron appeals his conviction and sentence for attempted
enticement of a minor and attempted transfer of obscene material to a minor. As
the facts are known to the parties and set forth in our concurrently filed opinion,1
we repeat them only as necessary to explain our decision.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
1
In the concurrently filed opinion, we address McCarron’s other arguments
concerning his conviction and sentence. See United States v. McCarron, --- F.4th -
--- (9th Cir. 2022).
I
Special Agent Albo’s challenged testimony, which the Government
concedes was improper, is not a basis for reversal. Because McCarron “failed to
raise a specific [‘ultimate issue’] objection to the testimony at trial . . ., we review
the district court’s decision . . . only for plain error.” See United States v. Campos,
217 F.3d 707, 712 (9th Cir. 2000). On plain error review, “[i]t is the defendant
rather than the Government who bears the burden of persuasion with respect to
prejudice.” United States v. Olano, 507 U.S. 725, 734 (1993). McCarron fails to
carry such burden in view of the overwhelming evidence against him. Moreover,
we reject McCarron’s argument that Albo’s testimony “suggested that McCarron
had confessed elsewhere in the video” of his non-custodial interview. Albo was
not asked if McCarron confessed, and the line of questioning did not imply that he
had.
II
Because McCarron intentionally withdrew his Rule 106 objection to the
video excerpts of his non-custodial interview, he waived any review. See United
States v. Manarite, 44 F.3d 1407, 1419 n.18 (9th Cir. 1995) (“[W]ithdrawal of an
objection is tantamount to a waiver of an issue for appeal.”). In any event, we are
satisfied from our review of the entire video and of the excerpts played at trial that
the Government’s editing was neither misleading nor harmful.
2
III
The district court’s instructional error regarding the community standard for
obscenity does not require reversal. “Where, as here, the defendant failed to object
to the jury instruction before the district court, we review for plain error whether
the instruction misstated the law.” See United States v. Robertson, 895 F.3d 1206,
1218 (9th Cir. 2018). A “national community standard must be applied in
regulating obscene speech on the Internet, including obscenity disseminated via
email.” United States v. Kilbride, 584 F.3d 1240, 1254 (9th Cir. 2009). Under
Kilbride, the district court did err in instructing the jury to use a local community,
rather than a “national community,” standard for obscenity. But McCarron does
not and cannot explain how applying the “national community” standard would
have changed the result. Accordingly, he fails to carry his plain-error burden of
demonstrating the error affected his substantial rights. See Olano, 507 U.S. at 734.
IV
The district court did not plainly err when it declined to give McCarron an
acceptance-of-responsibility reduction under U.S.S.G. § 3E1.1(a).2 Application
Note 2 of § 3E1.1(a) provides, “This adjustment is not intended to apply to a
2
McCarron resists plain error review by pointing out that he adopted the
initial presentence report, which “included [the] reduction.” But he subsequently
also adopted, without objection, the final presentence report, which no longer
recommended the reduction.
3
defendant who puts the government to its burden of proof at trial by denying the
essential factual elements of guilt.” U.S.S.G. § 3E1.1, note 2. Indeed, it is the
“rare situation[]” where a defendant “clearly demonstrate[s] an acceptance of
responsibility for his criminal conduct even though he exercises his constitutional
right to a trial.” Id. McCarron’s scattered record statements of “contrition and
remorse,” as McCarron describes them, fail to convince us that this case presents
such a “rare situation[].” See id.
The district court also did not plainly err in imposing an enhancement under
U.S.S.G. § 2G3.1(b)(1)(E), which applies when “the offense involved distribution
to a minor that was intended to persuade, induce, entice, [or] coerce, . . . the minor
to engage in prohibited sexual conduct.” McCarron argues that the evidence was
insufficient to show he attempted to persuade, induce, entice, or coerce a minor—
an argument we have already rejected in our concurrently filed opinion.
V
McCarron’s argument that Standard Condition 12 is unconstitutionally
vague is foreclosed by our decision in United States v. Gibson. See 998 F.3d 415,
422–23 (9th Cir. 2021).
VI
The judgment of the district court is AFFIRMED.
4