                                                                           FILED
                           NOT FOR PUBLICATION                              JUN 14 2012

                                                                        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. 11-50274

              Plaintiff - Appellee,              D.C. No. 3:11-cr-01147-LAB-1

  v.
                                                 MEMORANDUM *
ANDREW KUHN,

              Defendant - Appellant.



                    Appeal from the United States District Court
                      for the Southern District of California
                     Larry A. Burns, District Judge, Presiding

                        Argued and Submitted June 4, 2012
                              Pasadena, California

Before: B. FLETCHER, WARDLAW, and BYBEE, Circuit Judges.

       Appellant Andrew Kuhn pleaded guilty to one count of possession of child

pornography in violation of 18 U.S.C. § 2252A(a)(5)(B). Pursuant to the plea

agreement, the government recommended a sentence of 46 months. The district




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
court imposed a sentence of 60 months, and Kuhn appeals his sentence. We have

jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). We affirm.

      The district court did not err when it increased Kuhn’s base offense level by

four levels for possession of a video containing sadistic content. See U.S.S.G.

§ 2G2.2(b)(4). A single video can support this enhancement. See United States v.

Holt, 510 F.3d 1007, 1011 (9th Cir. 2007). There was sufficient evidence of

knowing possession of the video with sadistic content to satisfy that requirement.

See United States v. Rearden, 349 F.3d 608, 616 (9th Cir. 2003). The video had

been downloaded to Kuhn’s computer, was saved in his “My Documents” file, had

been accessed at least once after being downloaded, and had not been deleted.

      We do not have jurisdiction to review whether the district court erred when

it declined to apply a one-level downward departure recommended by the

government for Kuhn’s early resolution of the case. “We lack jurisdiction to

review a district court’s decision not to grant a discretionary downward departure

absent evidence that the district court believed it lacked the authority to do so.”

United States v. Tam, 240 F.3d 797, 805 (9th Cir. 2001). There is no evidence that

the district court believed it lacked the authority to grant the departure

recommended by the government. The district court recognized that the

government was recommending a one-level departure for “expedited disposition,”


                                      Page 2 of 3
but it chose to adopt the guideline range calculated by the probation department,

which did not include the one-level departure.

      Finally, the district court’s sentence of 60 months—which reflects its

decision to vary downward from the range of 78–97 months recommended by the

probation department—was not substantively unreasonable. See United States v.

Carty, 520 F.3d 984, 993 (9th Cir. 2008). The judgment of the district court is

AFFIRMED.




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