                    FOR PUBLICATION

   UNITED STATES COURT OF APPEALS
        FOR THE NINTH CIRCUIT


 UNITED STATES OF AMERICA,                        No. 13-10428
                 Plaintiff-Appellee,
                                                    D.C. No.
                     v.                          2:12-cr-00254-
                                                  JCM-PAL-1
 ALBERT SILVA HERNANDEZ, JR.,
              Defendant-Appellant.                  OPINION


        Appeal from the United States District Court
                 for the District of Nevada
         James C. Mahan, District Judge, Presiding

           Argued and Submitted March 23, 2016
                San Francisco, California

                       Filed July 10, 2018

 Before: M. Margaret McKeown, * Johnnie B. Rawlinson,
         and Mary H. Murguia, Circuit Judges.

                 Opinion by Judge McKeown;
                 Dissent by Judge Rawlinson


    *
      Judge M. Margaret McKeown was drawn to replace Judge Alex
Kozinski, who retired after oral argument but before this opinion was
published.
2               UNITED STATES V. HERNANDEZ

                          SUMMARY **


                          Criminal Law

    The panel affirmed in part and vacated in part a sentence
for sexual exploitation of a child, and issued a limited
remand for resentencing.

    The panel affirmed the district court’s determination that
the distribution-of-pornography enhancement set forth in
U.S.S.G. § 2G2.1(b)(3) applies when the perpetrator creates
an illicit image of a minor victim and shares it only with the
victim.

   The panel issued a limited remand for resentencing
because the record suggests that the district court penalized
the defendant by increasing his sentence based on his
decision to exercise his Sixth Amendment right to go to trial.

    Judge Rawlinson dissented from the portion of the
majority opinion concluding that the district judge
impermissibly “punished” the defendant by tethering his
sentence to the exercise of his constitutional right to have his
guilt determined by a jury.




    **
       This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
               UNITED STATES V. HERNANDEZ                    3

                         COUNSEL

Amy B. Cleary (argued) and Alina M. Shell, Assistant
Federal Public Defenders; Rene L. Valladares, Federal
Public Defender; Office of the Federal Public Defender, Las
Vegas, Nevada; for Defendant-Appellant.

Adam M. Flake (argued), Assistant United States Attorney;
Elizabeth O. White, Appellate Chief; United States
Attorney’s Office, Las Vegas, Nevada; for Plaintiff-
Appellee.


                         OPINION

McKEOWN, Circuit Judge:

    This appeal requires us to consider whether the
distribution of pornography enhancement set forth in United
States Sentencing Guidelines (“U.S.S.G.”) § 2G2.1(b)(3)
applies where a perpetrator creates an illicit image of a minor
victim and shares it only with the victim herself, rather than
with a third party. We hold that such conduct constitutes
“distribution” as that term is defined in the Sentencing
Guidelines and accompanying commentary, and we
therefore affirm the distribution enhancement imposed by
the district court on Albert Silva Hernandez, Jr. However,
because the record suggests that the district court penalized
Hernandez by increasing his sentence based on his decision
to exercise his Sixth Amendment right to go to trial, we issue
a limited remand for resentencing.

   I. Background

   Hernandez coached softball at Silverado High School in
Las Vegas, Nevada, and for a club softball team of girls aged
4               UNITED STATES V. HERNANDEZ

eighteen years and younger. Hernandez met N.C., 1 who was
17 years old and a minor under federal law, when she joined
his club softball team. Because N.C. was playing a new
position, Hernandez provided her with extra coaching
sessions to improve her softball skills. After several months,
the coach-player relationship turned sexual.

    In the course of their relationship, N.C. and Hernandez
exchanged photographs using a password-protected cellular
phone application that limited access of the photos sent to
only N.C. and Hernandez. N.C. took sexually explicit
photographs of herself with her mobile phone, often at
Hernandez’s direction, and sent the photographs to
Hernandez’s mobile phone. Hernandez took sexually
explicit photographs of himself on his mobile phone and, at
times at N.C.’s direction, sent those photographs to N.C. on
her mobile phone. Hernandez also took photos of himself
and N.C. engaged in sexual activity together, and later sent
those photos to N.C. via his mobile phone.

    The relationship between Hernandez and N.C. came to
light when N.C. inadvertently called home while engaged in
sexual activities with Hernandez. N.C.’s father retrieved her
mobile phone and delivered it to the police.

    After sexually explicit photographs and text messages
were recovered from N.C.’s mobile phone, Hernandez was
charged with eight counts of violating 18 U.S.C. §§ 2251(a),
(e) (sexual exploitation of a child) and three counts of
violating 18 U.S.C. §§ 2252A(a)(1), (b) (transporting child
pornography). Following a jury trial, Hernandez was
convicted of the sexual exploitation counts and acquitted of

    1
       The minor victim is referred to by her initials to protect her
identity.
                UNITED STATES V. HERNANDEZ                  5

the transporting counts.          After applying several
enhancements and denying a reduction for acceptance of
responsibility, the district court sentenced Hernandez to
284 months’ imprisonment.

   II. Procedural History

    This is Hernandez’s second round before this court. In
the first appeal, we rejected Hernandez’s arguments “that the
government impermissibly changed its theory of prosecution
during rebuttal argument” and that application of
enhancements for sexual contact and abuse of trust
constituted impermissible “double counting.” United States
v. Hernandez, 604 F. App’x 621, 622 (9th Cir. 2015)
(unpublished). We remanded to the district court to
reconsider application of the distribution enhancement set
forth in U.S.S.G. § 2G2.1(b)(3) in light of our decision in
United States v. Roybal, 737 F.3d 621 (9th Cir. 2013). Id. at
622. The district court was “to consider in the first instance
whether the distribution enhancement may be applied when
the defendant does not distribute the image to a third party.”
Id. We deferred consideration of “the reasonableness of the
sentence imposed pending the district court’s consideration
of the remanded issue.” Id. Following supplemental
briefing and a hearing on remand, the district court
concluded in light of Roybal that “the [distribution]
enhancement should apply in this case.”

   III.      Analysis

          A. Applicability of U.S.S.G. § 2G2.1(b)(3)

    Resolution of this case turns in part on what it means to
“distribute”   child     pornography       under     U.S.S.G.
§ 2G2.1(b)(3), which provides for a two-level sentencing
6                UNITED STATES V. HERNANDEZ

enhancement “[i]f the offense involved distribution.” 2 Id.
We review de novo a district court’s interpretation of the
Sentencing Guidelines. United States v. Lloyd, 807 F.3d
1128, 1172 (9th Cir. 2015).

    The government contends that the term “distribution” is
broad enough to encompass the transfer of illicit
pornographic images solely to the victim or victims depicted
in the images themselves. By contrast, Hernandez argues
that “distribution” occurs only if such images are shared with
a third party.

    Application note 1 in Sentencing Guideline 2G2.1
provides a specific definition for “distribution” for
sentencing enhancement purposes:

         “‘Distribution’ means any act, including
         possession with intent to distribute,
         production, transmission, advertisement, and
         transportation, related to the transfer of
         material involving the sexual exploitation of
         a minor. Accordingly, distribution includes
         posting material involving the sexual
         exploitation of a minor on a website for
         public viewing but does not include the mere
         solicitation of such material by a defendant.”

U.S.S.G. § 2G2.1, cmt. n.1.

    Under this definition, Hernandez’s conduct qualified as
“distribution.” Hernandez took photos of himself and the
minor N.C. engaged in sexual activity, and later transmitted

    2
      The 2012 edition of the Guidelines Manual was used to calculate
Hernandez’s sentence. All references in this opinion are to that edition.
               UNITED STATES V. HERNANDEZ                      7

those images via his cell phone to N.C. In doing so,
Hernandez committed an “act . . . related to the transfer of
material involving the sexual exploitation of a minor.” See
U.S.S.G. § 2G2.1, cmt. n.1.              He also engaged in
“transmission . . . related to the transfer of material involving
the sexual exploitation of a minor.” Id. The conclusion that
Hernandez engaged in “distribution” follows directly from
the text of the definition in the Guidelines.

    In Roybal, we addressed a scenario involving the
application of a sentencing enhancement for “distribution”
of child pornography. See 737 F.3d at 622. Roybal
permitted an eleven-year-old child to “print copies of child
pornography stored on [Roybal’s] computer” to create a
“book” of illicit pornographic images. Id. at 623–24.
Following Roybal’s guilty plea to one count of receiving
child pornography, the district court “applied a six-level
sentencing enhancement under U.S.S.G. § 2G2.2(b)(3)(D)”
based on its conclusion that Roybal’s act “qualified as
‘distribution.’” Id. at 622. We affirmed. Id. at 624–25.

    Interpreting the meaning of “distribution,” we focused
on the broad definition set forth in Guideline § 2G2.2 and its
commentary: “any act, including . . . transmission . . . ,
related to the transfer of material involving the sexual
exploitation of a minor.” Roybal, 737 F.3d at 624 (emphasis
added). Although we declined to decide whether the act of
“showing” illicit materials to a minor, standing alone, was
sufficient to constitute “distribution,” we were clear that
permitting the victim to print copies of computer-stored
child pornography “qualifie[d] as ‘distribution.’” Id.
Printing out materials in this way was “certainly ‘related to
the transfer of material involving the sexual exploitation of
a minor.’” Id.
8              UNITED STATES V. HERNANDEZ

      Hernandez contends Roybal is inapplicable because it
addressed a different guideline provision—U.S.S.G.
§ 2G2.2(b)(3)(D) as opposed to the guideline section we
address in this appeal—U.S.S.G. § 2G2.1(b)(3). But this
argument ignores that the definition of “distribution” is
identical for both guideline provisions. Compare U.S.S.G.
§ 2G2.2(b)(3)(D), cmt. n.1 with U.S.S.G. § 2G2.1(b)(3),
cmt. n.1. The definition includes the broad phrase “any act
. . . related to the transfer of” sexually explicit materials,
which encompasses Hernandez’s conduct here.               See
U.S.S.G. §§ 2G2.1(b)(3), 2G2.2(b)(3)(D) (emphasis added).

    As the Fourth Circuit has noted, “[t]he term ‘any’ at the
outset of the first sentence of the definition of ‘distribution’
in Application Note 1 [of the Sentencing Guidelines] ‘is a
term of great breadth.’” See United States v. Hecht, 470 F.3d
177, 182–83 (4th Cir. 2006) (citation omitted). In a different
context, we also have recognized the expansive breadth of
the term “any.” See Hertzberg v. Dignity Partners, Inc.,
191 F.3d 1076, 1080 (9th Cir. 1999) (explaining that “‘any’
means ‘one, no matter what one’; ‘ALL’; ‘one or more
discriminately from all those of a kind’”).

    The phrase “related to” as it appears in the definition of
“distribution” evokes similar breadth.         See U.S.S.G.
§ 2G2.1, cmt. n.1; United States v. Grzybowicz, 747 F.3d
1296, 1311–12 (11th Cir. 2014) (interpreting application
note 1 in U.S.S.G. § 2G2.1 as “broadly defining
‘distribution’”). Applying the definition to this case, we
hold that the transfer of illicit pornographic images to a
minor victim depicted in the images constitutes
“distribution” within the meaning of Guideline
§ 2G2.1(b)(3).

   Hernandez’s remaining arguments are not persuasive.
Hernandez’s claim that “[o]ther courts have already held
               UNITED STATES V. HERNANDEZ                     9

transmitting images to oneself does not constitute
distribution” is beside the point. See Grzybowicz, 747 F.3d
at 1309; United States v. Merrill, 578 F. Supp. 2d 1144, 1150
(N.D. Iowa 2008). Hernandez did not transmit the
pornographic images only to himself; he transmitted them to
the minor victim. There is no conflict between Grzybowicz
and Merrill—reasoning that the transfer of illicit images to
oneself alone does not constitute “distribution”—and our
holding here—that the transfer of illicit images to the minor
victim depicted in the images constitutes “distribution.”

    Hernandez also argues that “[d]istribution has
consistently been interpreted to require distribution or
attempted distribution to third parties.” However, none of
the cases Hernandez cites support this narrow reading. See,
e.g., United States v. Carani, 492 F.3d 867, 869–70, 875–76
(7th Cir. 2007) (defendant made child pornography videos
available for others to access and download through a file-
sharing program on his computer); United States v. Clawson,
408 F.3d 556, 557–58 (8th Cir. 2005) (defendant made disks
containing child pornography available to a minor by placing
them in a closet in the minor’s house); United States v.
Probel, 214 F.3d 1285, 1287–91 (11th Cir. 2000) (defendant
sent child pornography to a recipient over the internet).

     Although all of these cases affirmed the application of an
enhancement for “distribution,” none of them considered
whether such an enhancement applies only if a defendant
transmits illicit pornographic materials to a third party.
Instead, what all of the cases have in common is that a
defendant engaged in an “act . . . related to” the “transfer” of
illicit, sexually explicit material involving minors. See, e.g.,
U.S.S.G. § 2G2.1, cmt. n.1. The lesson learned from these
cases is that there are myriad methods to produce, transmit,
share, and exchange sexually explicit material.
10             UNITED STATES V. HERNANDEZ

    Neither the definition for “distribution” in the Guidelines
nor the case law supports the interpretation of the sentencing
enhancement that Hernandez urges us to adopt here. We
affirm the district court’s determination that the distribution
enhancement under U.S.S.G. § 2G2.1(b)(3) applies when
the illicit pornographic images are transferred to a minor
victim depicted in the images.

       B. Basis for Imposition of Sentence

    In the first appeal, we deferred consideration of “the
reasonableness of the sentence imposed pending the district
court’s consideration of the remanded issue.” Hernandez,
604 F. App’x at 622. We must defer that ultimate issue again
and remand because the district court appears to have
increased Hernandez’s sentence or withheld a reduction for
acceptance of responsibility based on Hernandez’s decision
to go to trial. Our review must await the district court’s
clarification of the basis for the sentence. Although not well
articulated, we view Hernandez’s challenge as both
procedural and substantive. See Gall v. United States,
552 U.S. 38, 49–51 (2007).

    The Supreme Court has repeatedly emphasized that “[t]o
punish a person because he has done what the law plainly
allows him to do is a due process violation ‘of the most basic
sort.’” United States v. Goodwin, 457 U.S. 368, 372 (1982)
(quoting Bordenkircher v. Hayes, 434 U.S. 357, 363 (1978)).

    We have consistently echoed this principle, including in
the context where a district court withholds a reduction for
acceptance of responsibility. In United States v. Watt, we
warned that “a sentencing court cannot consider against a
defendant any constitutionally protected conduct.” 910 F.2d
587, 592 (9th Cir. 1990), abrogated on other grounds by
United States v. Anderson, 942 F.2d 606 (9th Cir. 1991). In
              UNITED STATES V. HERNANDEZ                   11

refusing to apply a two-level reduction for acceptance of
responsibility, the district court “noted that, while Watt
manifested his responsibility to the probation officer, he did
so only after he was caught red-handed on a serious offense
in which he was facing extremely heavy charges . . . .” Id.
at 589 (internal quotation marks omitted). We vacated and
remanded, explaining that “[p]enalizing a defendant for
failing to provide evidence against himself or [refusing] to
make incriminating statements violates his constitutionally
protected rights.” Id. at 593.

     We provided a more nuanced explanation of this
sentencing hazard in United States v. Sitton, reiterating that
“the district court may deny [a sentencing] reduction because
of a lack of contrition despite the increased costs imposed
upon the defendant’s choice to remain silent or to proceed to
trial, but may not deny the reduction because of that choice
in spite of other manifestations of sincere contrition.”
968 F.2d 947, 962 (9th Cir. 1992) (emphasis added).
Remand was appropriate in Sitton so that the district court
could clarify whether the reasons underlying its denial of a
downward reduction were consistent with the defendant’s
constitutional rights. Id. at 962–63. More recently, in
United States v. Ramos-Medina, we once again observed that
a “defendant’s right to contest his guilt before a jury is
protected by the Constitution, and his decision to do so
cannot be held against him.” 706 F.3d 932, 940 (9th Cir.
2013) (internal quotation marks and citation omitted).

   This rule is also well settled in our sister circuits. In
United States v. Saunders, the Seventh Circuit declared it
“well established under the so-called unconstitutional
conditions doctrine that a defendant may not be subjected to
more severe punishment for exercising his or her
constitutional right to stand trial.” 973 F.2d 1354, 1362 (7th
12             UNITED STATES V. HERNANDEZ

Cir. 1992); see also United States v. Frost, 914 F.2d 756, 774
(6th Cir. 1990) (observing that “it is improper for a district
judge to penalize a defendant for exercising his
constitutional right to plead not guilty and go to trial, no
matter how overwhelming the evidence of his guilt”)
(internal quotation marks and citation omitted).

    Taken together, these decisions reflect the fundamental
principle that for “an agent of the State to pursue a course of
action whose objective is to penalize a person’s reliance on
his legal rights is patently unconstitutional.” Wayte v.
United States, 470 U.S. 598, 630 (1985) (internal quotation
marks and citation omitted).

    With these principles in mind, our review of the
sentencing transcript leaves us discomfited that the district
court penalized Hernandez for his assertion of protected
Sixth Amendment rights. The district court emphasized
Hernandez’s decision to go to trial five separate times during
the sentencing hearing. The court first stated that “it would
mean something if [Hernandez] took responsibility before
the trial.” The court then repeated that “contrition means
something when it happens before trial.” The court went on,
stating “I have never had a defendant – there have been one
or two maybe – after being found guilty, who didn’t feel
contrition . . . everybody feels contrition now. Now, when
they are looking at spending time in prison, everybody feels
remorse for what they did.”

    Still further, the court continued: “[W]hat I look for is
somebody who feels remorse before the trial, before you put
this young girl through the – through the agony of testifying,
having to testify to what went on, and then identify pictures
of herself, personal pictures. So, I don’t see – I don’t see
much remorse there, Mr. Hernandez.” This comment
revealed the court’s dim view of Hernandez’s right “to be
               UNITED STATES V. HERNANDEZ                   13

confronted with the witnesses against him.” U.S. Const.
amend. VI.

    Finally, just before the district court imposed
Hernandez’s sentence, it declared: “You decided to roll the
dice, and it came up snake eyes. You didn’t think she’d
testify, and she did. You went – you wanted to go to trial,
so you went to trial. And Probation rightly recommends
327 months for that.”

    This last statement was of particular significance,
coming directly before the court handed down the 284-
month sentence. Deciding “to roll the dice” could only refer
to Hernandez’s decision to go to trial—a right enshrined in
the constitution and guaranteed to him by the Sixth
Amendment. U.S. Const. amend. VI. That the dice “came
up snake eyes”—Hernandez was convicted by the jury—
while true, is no reason standing alone to impose a harsher
sentence, or to withhold a reduction for acceptance of
responsibility.

     The district court’s statements run headlong into our
precedent “that a judge cannot rely upon the fact that a
defendant refuses to plead guilty and insists on his right to
trial as the basis for denying an acceptance of responsibility
adjustment.” United States v. Ochoa-Gaytan, 265 F.3d 837,
842 (9th Cir. 2001) (internal quotation marks and citation
omitted). In recognition of this principle, we have
acknowledged that “a defendant who contests his factual
guilt at trial may, under some circumstances, be entitled to
such an adjustment.” United States v. Mohrbacher, 182 F.3d
1041, 1052 (9th Cir. 1999). We recognize that sometimes
there can be a fine line between putting on a defense at trial,
and expressing contrition at sentencing. But this is not a
binary, “either/or” proposition as suggested by the district
court.
14             UNITED STATES V. HERNANDEZ

    Critically here, the district court’s comments regarding
Hernandez’s decision to go to trial comprised virtually the
entirety of the explanation for the sentence. It does not
appear that the court “based its final decision on the facts of
this case and on this particular record as a whole.” Ramos-
Medina, 706 F.3d at 941–42 (internal quotation marks
omitted); see also United States v. Rojas-Pedroza, 716 F.3d
1253, 1270 (9th Cir. 2013) (explaining that a “district court
does not commit reversible error . . . simply because it notes
the fact that the defendant went to trial, so long as the court
bases its final decision on the facts of the case and record as
a whole”). Indeed, the court did not reference any particular
“facts of this case” or “particular record” beyond
Hernandez’s exercise of his constitutional rights. Ramos-
Medina, 706 F.3d at 941–42.

    To be sure, the district court made a passing reference to
the 18 U.S.C. § 3553(a) sentencing factors. The court
concluded the hearing by stating that the “midrange of the
guideline is sufficient considering all of the factors set forth
in 18 U.S.C. Section 3553(a) and meets the sentencing goals
as outlined by that statute.” But reciting this boiler-plate
statement immediately after chastising Hernandez for going
to trial, and without any explanation, does not cure the
infirmities in the district court’s justification for the sentence
imposed. The court did not specify which factors it
considered, nor is it apparent how the court may have
applied the factors to the facts of Hernandez’s case, or
whether it considered any facts at all beyond Hernandez’s
decision to exercise his constitutional rights. On this record,
                 UNITED STATES V. HERNANDEZ                          15

it is impossible to avoid the centrality of the comments about
Hernandez’s decision to go to trial. 3

    Enhancing a sentence solely because a defendant
chooses to go to trial risks chilling future criminal
defendants from exercising their constitutional rights. And
imposing a penalty for asserting a constitutional right
heightens the risk that future defendants will plead guilty not
to accept responsibility, but to escape the sentencing court’s
wrath.

    Although most federal criminal cases result in guilty
pleas, 4 the Sixth Amendment right to trial remains an
important safeguard to defendants who insist on their
innocence. Permitting courts to impose harsher sentences on
those few defendants who do go to trial could in practice
restrict the exercise of the right to those with unusual risk
tolerance—or uncommon courage.




    3
        The dissent compares the present case to United States v.
Broxmeyer, 699 F.3d 265 (2d Cir. 2012). It notes the district court’s
concern in Broxmeyer with the defendant’s “disturbing lack of remorse,”
and equates the Broxmeyer district court’s concerns to those of the
district court in this case. The underlying facts of Broxmeyer, involving
numerous victims and forceful assault, and the defendant’s clear
comments demonstrating that he did not have remorse and did not take
his conduct seriously, are distinguishable from the present case.

    4
       Ninety-one percent of criminal defendants in cases terminated in
federal district courts in 2014 were convicted as the result of a guilty
plea, six percent were dismissed, and three percent received a jury or
bench trial. See US Department of Justice Bureau of Justice Statistics,
“Federal       Justice     Statistics,  2013–14,”      available      at
https://www.bjs.gov/content/pub/pdf/fjs1314.pdf (Last accessed July 2,
2018).
16             UNITED STATES V. HERNANDEZ

   Hence, we vacate the sentence and order a limited
remand to permit the district court to “adequately explain the
chosen sentence to allow for meaningful appellate review
and to promote the perception of fair sentencing.” Gall,
552 U.S. at 50.

  AFFIRMED in part, VACATED in part, and
REMANDED.



RAWLINSON, Circuit Judge, dissenting in part:

    I respectfully dissent from that portion of the majority
opinion concluding that the district court judge
impermissibly “punished” the defendant by tethering his
sentence to the exercise of his constitutional right to have his
guilt determined by a jury.

    Hernandez takes issue with the following remarks from
the district court:

       [W]hat I look for is somebody who feels
       remorse before the trial, before you put this
       young girl through the—through the agony of
       testifying, having to testify to what went on,
       and then identifying pictures of herself,
       personal pictures. So I don’t see much
       remorse there . . .

   Respectfully, the majority opinion conflates the
procedural analysis and the substantive reasonableness
analysis that govern sentencing proceedings. Sitting en
banc, we clarified that when reviewing a sentence on appeal,
“we first consider whether the district court committed
procedural error.” United States v. Carty, 520 F.3d 984, 993
                UNITED STATES V. HERNANDEZ                      17

(9th Cir. 2008) (en banc). We delineated the following as
examples of procedural error: failing to calculate the
Guidelines Range or calculating the range incorrectly;
treating the Guidelines as mandatory rather than advisory;
failing to consider the factors set forth in 18 U.S.C.
§ 3553(a); imposing a sentence based on clearly erroneous
facts; or failing to give an adequate explanation for the
sentence imposed. See id.

    It is only after we consider whether the district court
procedurally erred that we consider the substantive
reasonableness of the sentence. See id. (“On appeal, we first
consider whether the district court committed significant
procedural error, then we consider the substantive
reasonableness of the sentence.”) (citation omitted)
(emphasis added).

    Hernandez did not assert that the district court committed
the procedural errors delineated in Carty. Rather, in his
Opening Brief, Hernandez characterized the district court’s
reference to his exercise of his right to a jury trial as resulting
in a substantively unreasonable sentence, not a procedurally
erroneous one. See Appellant’s Opening Brief, pp. 20–24.
Hernandez challenged the district court’s enhancements that
affected the Guidelines Range calculation separately, as
provided in Carty.          See id., pp. 13–20; pp. 17–20
(referencing an incorrect calculation of the Guidelines
Range).

    The cases cited in the majority opinion reinforce that any
analysis regarding Hernandez’s argument that he was
punished for going to trial belongs in the procedural error
consideration as articulated in Carty, 520 F.3d at 993, i.e.,
calculating the Guidelines Range incorrectly. With the
exception of a case from the Sixth Circuit that, like the
majority opinion, fails to distinguish between the procedural
18               UNITED STATES V. HERNANDEZ

error and substantive unreasonableness analyses 1, the cases
discussed by the majority all involve the reduction for
acceptance of responsibility, a reduction that is pivotal to
calculation of the Guidelines Range, a prototypical
procedural concern. See Carty, 520 F.3d at 993; see also
United States v. Watt, 910 F.2d 587, 592 (9th Cir. 1990)
(analyzing Watts’ constitutional claim in the context of a
reduction for acceptance of responsibility); United States v.
Sitton, 965 F.2d 947, 962 (9th Cir. 1992) (same); United
States v. Saunders, 973 F.2d 1354, 1361–62 (9th Cir. 1992)
(same); United States v. Ochoa-Gaytan, 265 F.3d 837, 842
(9th Cir. 2001) (same); United States v. Ramos Medina,
706 F.3d 932, 941 (9th Cir. 2013), as amended (noting, in
addressing the defendant’s argument that he was penalized
for going to trial when the court denied a reduction for
acceptance of responsibility, that “we continue to review
whether the district court correctly calculated the Guidelines
range as the first step in our review of criminal sentences)
(citation omitted) (emphasis added). 2

    In United States v. Rojas-Pedroza, 716 F.3d 1253 (9th
Cir. 2013), one of the more recent cases cited by the
majority, we analyzed separately as an asserted procedural
error the defendant’s argument that the court denied an
acceptance of responsibility reduction based on his decision
to go to trial. See id. at 1270–71. After determining that
there was no procedural error, we then proceeded to address


     1
      United States v. Frost, 914 F.2d 756, 774 (6th Cir. 1990). This
analysis is not consistent with our en banc ruling in Carty.

     2
      The Supreme Court case cited, United States v. Goodwin, 457 U.S.
368, 372 (1982), did not involve a sentencing claim, and its analysis of
the vindictive prosecution claim presented is of limited relevance to this
appeal.
               UNITED STATES V. HERNANDEZ                   19

the substantive reasonableness of the sentence imposed. See
id. at 1271.

    The majority seeks to disguise its conflation of the
standards by “view[ing] Hernandez’s [not well articulated]
challenge as both procedural and substantive.” Majority
Opinion, p. 10. The problem with the attempted disguise is
that it is diametrically opposed to the assertions of error
articulated by Hernandez in his Opening Brief.
Additionally, the majority fails to address the fact that the
cases cited in support of its holding address the reduction for
acceptance of responsibility, a procedural concern.

    Because Hernandez made no argument that the
Guideline Range was affected, because the record does not
reflect the existence of any other cognizable procedural
error, and because Hernandez couched his claim as one of
substantive unreasonableness, I proceed to analysis of the
argument actually made by Hernandez. See Gall v. United
States, 552 U.S. 38, 56 (2007) (proceeding to substantive
reasonableness analysis when no procedural error
discerned). When reviewing a sentence for substantive
unreasonableness, we do not analyze discrete legal issues.
Rather, the sentence is reviewed as a whole. See Carty,
520 F.3d at 993.

     Although perhaps the district court could have phrased
its reasoning more artfully, in context the remarks are not a
sufficient basis to support a determination of substantive
unreasonableness. It is apparent that the primary focus of
the court’s concern was Hernandez’s manipulation of the
victim and lack of remorse. I agree with the Second Circuit
that these were appropriate concerns. See United States v.
Broxmeyer, 699 F.3d 265, 291 (2d Cir. 2012). The Second
Circuit observed that Broxmeyer, who was also a coach,
took advantage of his position “by using the close physical
20               UNITED STATES V. HERNANDEZ

contact he was . . . afforded to . . . teenage girls—access that
the parents and community likely would not have afforded
the average male of his age—to corrupt the girls’ emerging
sexual awareness for his own gratification.” (citation,
footnote reference and internal quotation marks omitted).
As with the district court in this case, the district court in
Broxmeyer described the defendant as displaying “a
disturbing lack of remorse for, or even appreciation of, the
seriousness of the totality of his conduct.” Id. at 295.

    The Second Circuit viewed Broxmeyer’s lack of remorse
as “a circumstance that further expanded the range of
substantively reasonable sentences . . .” Id. I cannot
conclude that the district court erred in this case by reaching
a similar conclusion. As with the defendant in Broxmeyer,
Hernandez has continued to insist that the relationship was
“consensual,” despite the minor’s lack of ability to legally
consent, and despite the victim’s statement to the court that
she was manipulated by Hernandez. See id. I agree with the
Second Circuit that it was Hernandez’s responsibility “by
virtue of his position as . . . coach” to act as a role model for
the teenagers. Instead, Hernandez, similar to Broxmeyer,
“turned [N.C.’s] immaturity and lack of judgment to his own
advantage.” Id. 3

    In sum, Hernandez has not met his burden of establishing
that his sentence was substantively unreasonable. A
determination of substantive unreasonableness is reserved
for the rarest of cases. See United States v. Ressam, 679 F.3d
1069, 1088 (9th Cir. 2012), as amended. I agree with the
Second Circuit that a showing of substantive

     3
      Despite the majority’s attempt to distinguish Broxmeyer, the facts
in the two cases are remarkably similar. Contrary to the majority’s
suggestion, one victim is enough to support the sentence imposed.
               UNITED STATES V. HERNANDEZ                    21

unreasonableness is made only if the sentence imposed is “so
shockingly high, shockingly low, or otherwise
unsupportable as a matter of law that allowing [it] to stand
would damage the administration of justice.” Broxmeyer,
699 F.3d at 289 (citation and internal quotation marks
omitted). This sentence imposed by the district court at the
lower end of the correctly calculated guideline sentencing
range is not that case. Because the majority opinion deviates
sharply from the analysis articulated in Carty, because its
analysis does not track the arguments made by Hernandez,
and because the sentence imposed was substantively
reasonable, I respectfully dissent from that portion of the
majority opinion concluding that the district court
committed reversible error during sentencing.

    I agree with the district court that the term “distribution”
in U.S.S.G. § 2G2.1(b)(3) is broad enough to encompass
transmission of the sexually explicit images to the victim
depicted in the images. Our decision in Roybal supports that
determination.

    I would affirm the district court’s judgment in its
entirety.
