                                                                           FILED
                           NOT FOR PUBLICATION                              JAN 11 2011

                                                                        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. 09-50222

              Plaintiff - Appellee,              D.C. No. 2:08-cr-01336-CJC-1

  v.
                                                 MEMORANDUM *
RUMALDO GARZA,

              Defendant - Appellant.



                    Appeal from the United States District Court
                       for the Central District of California
                    Cormac J. Carney, District Judge, Presiding

                     Argued and Submitted December 8, 2010
                              Pasadena, California

Before: B. FLETCHER, BERZON, and CALLAHAN, Circuit Judges.

       Rumaldo Garza challenges his twelve-year sentence following his

conviction for receiving child pornography. We affirm his sentence.

       1. Because Garza did not challenge the enhancements for materials

portraying sadistic or masochistic conduct and for using a computer in the district



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
court, his challenge is reviewed under the plain error standard. See United States v.

Autery, 555 F.3d 864, 873 (9th Cir. 2009). First, U.S.S.G. § 2G2.2 (b)(4) provides

for a four-level enhancement for materials portraying sadistic or masochistic

conduct. The offense for which Garza was convicted, receiving child pornography

in violation of 18 U.S.C. § 2252A(a)(2)(A), covers materials that are not

necessarily sadistic or masochistic. The record shows that some of the images

received by Garza portrayed sadistic or masochistic conduct. See United States v.

Rearden, 349 F.3d 608, 615-16 (9th Cir. 2003). Second, U.S.S.G. § 2G2.2(b)(6)

provides for a two-level enhancement for use of a computer. Garza not only

received child pornography on his computer, he used it to send pornography to

minor girls. Garza has not shown that the application of the two enhancements

was plain error.

      2. Garza has not shown that the district court failed to properly consider the

factors set forth in 18 U.S.C. § 3553(a). A sentencing judge need only “set forth

enough to satisfy the appellate court that he has considered the parties’ arguments

and has a reasoned basis for exercising his own legal decisionmaking authority.”

Rita v. United States, 551 U.S. 338, 356 (2007). The sentencing hearing shows

that the district court carefully considered Garza’s arguments as well as the

Probation Office’s position and adequately explained the sentence imposed.


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      3. Garza has not shown that he is entitled to any relief based on the

principles set forth in Apprendi v. New Jersey, 530 U.S. 466 (2000). Although the

initial calculation of the maximum sentence in the Pre-Sentence Report arguably

exceeded the 240-month statutory maximum sentence for the underlying crime,

Garza was sentenced to only 144 months of incarceration. The Ninth Circuit has

“held repeatedly that a defendant cannot obtain relief under Apprendi when his

sentence does not exceed the statutory maximum authorized by the jury’s verdict.”

United States v. Saya, 247 F.3d 929, 942 (9th Cir. 2001).

      4. Garza’s plea was not improperly induced by a meaningless promise not

to prosecute. The Government could have prosecuted Garza for the uncharged

crime of enticing a minor and for his possession of child pornography images not

covered by the Information without violating the double jeopardy clause. See

generally United States v. Schales, 546 F.3d 965, 977-980 (9th Cir. 2008).

      5. The Plea Agreement did not bar the Government from defending the

district court’s sentence on appeal. The Plea Agreement recognized that the

district court was not obligated to adopt the agreed upon five-year sentence, and as

agreed to in the Plea Agreement, the U.S. Attorney urged the district court to adopt

the agreed-upon sentence. But the Plea Agreement also stated that both Garza and

the Government would be free to argue on appeal that the district court’s


                                          3
Sentencing Guidelines calculations were not error, which is what the Government

has done here. Garza has not pointed to anything in the Plea Agreement or our

precedent that supports his argument that the U.S. Attorney may not defend the

district court’s sentence before this court.

      For the foregoing reasons, Rumaldo Garza’s sentence is AFFIRMED.




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