                                                                           FILED
                                                                            OCT 25 2016

                           NOT FOR PUBLICATION                          MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                   UNITED STATES COURT OF APPEALS

                          FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                     No. 15-50323
                                              D.C. 2:13-CR-00570-JAK-2
            Plaintiff-Appellee,
v.
                                              MEMORANDUM*
JORGE MONTOY,

            Defendant-Appellant.


                   Appeal from the United States District Court
                      for the Central District of California
                   John A. Kronstadt, District Judge, Presiding

                           Submitted August 31, 2016**1
                              Pasadena, California

Before: WARDLAW and BYBEE, Circuit Judges, and ZIPPS,*** District Judge.

      Jorge Montoy (“Montoy”) appeals his conviction and 240-month sentence for

      1*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).
      ***
         The Honorable Jennifer G. Zipps, United States District Judge for the
District of Arizona, sitting by designation.

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aiding and abetting the sexual exploitation of a minor in violation of 18 U.S.C. §§ 2

and 2251(a). We affirm.

      The district court properly interpreted the term “induce” as it is used in 18

U.S.C. § 2. 18 U.S.C. § 2(a) provides, “Whoever commits an offense against the

United States or aids, abets, counsels, commands, induces or procures its commission,

is punishable as a principal.” There is no federal case law construing the term

“induce” as it is used in 18 U.S.C. § 2. Under the rules of statutory construction,

“[t]he plain meaning of the statute controls, and courts will look no further, unless its

application leads to unreasonable or impracticable results.” United States v. Leyva,

282 F.3d 623, 625 (9th Cir. 2002). To “induce” is “to move by persuasion or

influence.” United States v. Rashkovski, 301 F.3d 1133, 1136 (9th Cir. 2002)

(quoting Merriam-Webster’s Collegiate Dictionary (2002)); see also United States v.

Ezeta, 752 F.3d 1182, 1185 (9th Cir. 2014) (“To determine a word’s plain and

ordinary meaning, we may refer to standard English language dictionaries.”) The

district court’s reliance on Rashkovski for the proposition that “induce” includes

persuasion and influence was a reasonable interpretation of 18 U.S.C. § 2; the district

court applied a canon of statutory interpretation and construed the term “induce”

based on its plain meaning. See, e.g., Glob.-Tech Appliances, Inc. v. SEB S.A., 563

U.S. 754, 760 (2011) (citing to Webster’s New International Dictionary 1269 (2d


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ed.1945) and concluding that the term “induce” as it is used in 35 U.S.C. § 271

includes “to move by persuasion or influence”).

      Moreover, the district court’s interpretation is in keeping with courts’

historically liberal construction of 18 U.S.C. § 2. As at common law, a person is

liable under § 2 for aiding and abetting a crime if he takes an affirmative act in

furtherance of that offense with the intent of facilitating the offense’s commission.

Rosemond v. United States, 134 S. Ct. 1240, 1245 (2014). This “comprehends all

assistance rendered by words, acts, encouragement, support, or presence.” Reves v.

Ernst & Young, 507 U.S. 170, 178 (1993) (citing Black’s Law Dictionary 68 (6th ed.

1990)). An aider and abettor “is liable for any criminal act which in the ordinary

course of things was the natural or probable consequence of the crime that he advised

or commanded, although such consequence may not have been intended by him.”

United States v. Barnett, 667 F.2d 835, 841 (9th Cir. 1982) (quoting Russell v. United

States, 222 F.2d 197, 199 (5th Cir. 1955). We have found sufficient evidence of aiding

and abetting where the aider and abettor provided verbal encouragement of a crime

and gave advice about how to commit the crime. See United States v. Allen, 341 F.3d

870, 889 (9th Cir. 2003).

      The evidence was sufficient to establish that Montoy persuaded and influenced

Foster to produce Exhibits 3-8 such that he “induced” Foster to sexually exploit a


                                          3
minor in violation of 18 U.S.C. §§ 2 and 2251(a). Montoy repeatedly praised Foster

for taking the images, repeatedly encouraged her to take more, and specifically

directed Foster regarding what portions of A.M.’s body to photograph and how to

touch A.M. Foster was, in fact, influenced by and complied with Montoy’s requests.

As the district court described in detail at the close of the bench trial, Montoy’s

requests for specific poses can be linked to specific photographs featuring that exact

pose, sent by Foster to Montoy within minutes of his requests. The texts between

Montoy and Foster indicate that Montoy was fully aware of the sexual exploitation of

A.M. and intended for it to occur.

      The district court did not abuse its discretion in imposing a below-Guideline

range sentence of 240 months. The overarching statutory charge for a district court

is to “impose a sentence sufficient, but not greater than necessary” to reflect the

seriousness of the offense, promote respect for the law, provide just punishment,

afford adequate deterrence, protect the public, and provide the defendant with needed

educational or vocational training, medical care, or other correctional treatment. 18

U.S.C. § 3553(a) & (a)(2); United States v. Carty, 520 F.3d 984, 991 (9th Cir. 2008)

(en banc). Review of the trial transcript indicates that the district court considered the

§ 3553(a) factors in determining Montoy’s sentence. See United States v. Treadwell,

593 F.3d 990, 999 (9th Cir. 2010) (holding that a district court sentence is an abuse


                                            4
of discretion only if the district court applies the Guidelines in a way that is “illogical,

implausible, or without support in inferences that may be drawn from the facts in the

record.”) The district court’s decision to impose a sentence above the mandatory

minimum was based on its view that such a sentence was justified by the seriousness

of Montoy’s offenses, the need to deter Montoy and protect the public, and Montoy’s

need for treatment.

AFFIRMED.




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