                                                                              FILED
                           NOT FOR PUBLICATION                                  JUN 25 2015

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 13-50602

              Plaintiff - Appellee,              D.C. No. 3:13-cr-01988-GPC-1

 v.
                                                 MEMORANDUM*
JAIME BIBO-LOPEZ,

              Defendant - Appellant.


                   Appeal from the United States District Court
                     for the Southern District of California
                   Gonzalo P. Curiel, District Judge, Presiding

                       Argued and Submitted March 6, 2015
                              Pasadena, California
                       Submission Vacated March 11, 2015
                           Resubmitted June 25, 2015


Before: REINHARDT, N.R. SMITH, and HURWITZ, Circuit Judges.

      Jaime Bibo-Lopez1 pleaded guilty to one count of distributing visual

depictions of a minor engaged in sexually explicit conduct in violation of 18

          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      1
       The defendant-appellant is referred to throughout the briefs as Bibo; that
name is used here.
U.S.C. § 2252(a)(2). The district court sentenced Bibo to six years in custody and

ten years of supervised release. Bibo argues that the district court committed

procedural errors in deciding the length of his custody and the terms of two of the

conditions of his supervised release. We agree.

      A district court commits a procedural error if it bases its sentence on “clearly

erroneous facts.” United States v. Carty, 520 F.3d 984, 993 (9th Cir. 2008) (en

banc). A factual finding is clearly erroneous if it is “without support in the record.”

United States v. Graf, 610 F.3d 1148, 1157 (9th Cir. 2010). When the district court

relies on a clearly erroneous factual conclusion in deciding a sentence, we vacate

and remand for resentencing, even when other factors might have supported the

sentence. United States v. Burgum, 633 F.3d 810, 816 (9th Cir. 2011).

      The district court sentenced Bibo above the mandatory minimum based in

part on the “real” risk that he would “graduate from the observation of [child

pornography] to actual conduct.” Bibo correctly asserts that the district court’s

finding had no support in the record and thus was clearly erroneous. Bibo

introduced evidence that he did not present a risk of “graduating” and the

government did not present any evidence that he did. The government now points

to studies showing that some child pornography offenders pose a greater risk than

members of the public at large to commit contact sex offenses, but it did not cite


                                           2
these studies before the district court. Without commenting on the relevance or

weight of the studies, we hold that they may not be used to support the sentence in

this case because they were not part of the record before the district court.

Accordingly, we vacate and remand the sentence.

      Although we remand the entirety of Bibo’s sentence on the basis of the

above procedural error, in the interest of avoiding needless additional litigation we

briefly address Bibo’s other objections to his sentence. Condition 12 of Bibo’s

supervised release requires him to complete “a sex offender evaluation, which may

include periodic . . . physiological testing.” Bibo argues that this could include

penile plethysmography testing.2 The government concedes that Condition 12 does

not allow for plethysmography testing, and the district court could not have

authorized plethysmography testing without making additional factual findings.

United States v. Weber, 451 F.3d 552, 568-69 (9th Cir. 2006). Assuming the

district court imposes a similar restriction to Condition 12 on remand, it should

make explicit what was implicit before: the condition does not include penile

plethysmography testing.

      2
       “Penile plethysmograph testing is a procedure that involves placing a
pressure-sensitive device around a man’s penis, presenting him with an array of
sexually stimulating images, and determining his level of sexual attraction by
measuring minute changes in his erectile responses.” United States v. Weber, 451
F.3d 552, 552 (9th Cir. 2006) (internal quotation marks omitted).

                                           3
      Bibo also asserts that the district court erred by imposing Condition 9, which

prevents him from possessing any material that “depicts ‘sexually active

conduct’ . . . as defined by 18 U.S.C. § 2256(2)” involving adults. Bibo contends

that this condition sweeps in not only adult pornography, but a wide swath of

mainstream, non-pornographic films, television shows, literature, and other media.

He argues that Condition 9 therefore implicates significant First Amendment

interests and should be subject to the articulation requirement outlined in Weber.

451 F.3d at 561.

      We recently confronted an almost identical condition of supervised release

in United States v. Gnirke, 775 F.3d 1155, 1158 (9th Cir. 2015). In that case we did

not reach the question of whether Condition 9 as written triggered the articulation

requirement because we construed language identical to Condition 9 as limited to

pornography. Id. at 1166. Under this narrower reading, we found that limiting

Gnirke’s access to adult pornography did not infringe a significant liberty interest.

Id. at 1160. As in Gnirke, the district court here was concerned that viewing adult

pornography would lead Bibo back to viewing child pornography. On remand,

assuming the district court again imposes a condition of supervised release similar

to Condition 9, it should make clear that the condition is limited to the restriction

as upheld in Gnirke.


                                           4
Sentence Vacated and Remanded.




                                 5
                                                                             FILED
                                                                              JUN 25 2015
N.R. Smith, Circuit Judge, dissenting:
                                                                          MOLLY C. DWYER, CLERK
                                                                           U.S. COURT OF APPEALS
      On appeal, Bibo only challenges the procedural reasonableness of his

sentence, alleging that the district court’s conclusion that there was “some reason

to believe” Bibo might graduate to a contact offense was clearly erroneous.

      Under United States v. Carty, we review a sentence for procedural

reasonableness, including whether the district court chose “a sentence based on

clearly erroneous facts.” 520 F.3d 984, 993 (9th Cir. 2008). When we review for

clear error, we will reverse only if there is no evidence in the record to support the

district court’s finding, or if we are “left with the definite and firm conviction that a

mistake has been committed.” United States v. Christensen, 732 F.3d 1094, 1103

(9th Cir. 2013) (citation omitted). “Where there are two permissible views of the

evidence, the factfinder’s choice between them cannot be clearly erroneous.”

United States v. Elliot, 322 F.3d 710, 715 (9th Cir. 2003) (citation omitted).

      Bibo moved the district court to vary downward from the applicable

Guidelines range to the statutory minimum. The district court agreed to vary

downward, but not to the extent Bibo requested. The district court justified the

sentence it imposed, because “there [was] some reason to believe that individuals

who obtain gratification from viewing these photographs and videos are on the

path to themselves engaging in the form of conduct that’s depicted.” The court

                                           1
further noted that, in its experience, “individuals who engage in the monitoring and

viewing of these photographs graduate.” With regard to the specific risk that Bibo

himself would “graduate” to a contact offense, the district court said it was

“impossible” to know; the higher sentence was merely a precaution.

      In order for Bibo’s sentence to be procedurally reasonable, there need only

have been “some evidence” in the record from which the district court could

conclude that there was a risk that Bibo might commit a contact offense against a

child in the future. See United States v. Gadson, 763 F.3d 1189, 1220 (9th Cir.

2014). We are not called upon, as the majority mistakenly suggests, to determine

whether the degree of risk justified the district court’s decision not to vary down to

the mandatory minimum. The majority’s conclusion that the district court’s

finding was clearly erroneous is at odds with the record and our precedent.

Therefore, I respectfully dissent.

      In this appeal, Bibo has to demonstrate either (1) that there was no basis for

the district court’s conclusions or (2) that his studies unequivocally demonstrated

that no such link exists. He failed on both counts, and his sentence should be

affirmed. Bibo contends that he provided studies to the district court showing that

there was no risk that he would “graduate,” based solely on the fact that he viewed

and possessed child pornography. However, even a cursory examination of Bibo’s

                                          2
materials shows that the opposite is true.

      Bibo first cited an article that plainly recognized that, before the internet,

between one-fifth and one-third of offenders in possession of child pornography

were also abusers. While the emergence of the internet may have diminished these

numbers, there was nothing in the materials that Bibo provided to show that the

risk has been extinguished. Indeed, the second article cited by Bibo noted only that

“[a] history of viewing child porn is not itself a strong indicator” of whether an

offender will go on to abuse children. Contrary to Bibo’s assertions, none of his

cited materials supported his assertion that “it is a myth that there is a link between

casual viewing of child pornography and abusing children.” This statement is

merely Bibo’s gloss on materials that unambiguously show that a link exists

between possession of child pornography and committing contact offenses against

children. Because we are reviewing Bibo’s sentence solely for procedural

reasonableness, this evidence was sufficient to show that the district court’s actual

conclusion, that there was “some reason to believe” Bibo (as a possessor of child

pornography) might commit a contact offense in the future, was not clearly

erroneous.

      The district court was entitled to draw the same conclusion from this

evidence as the court in United States v. Apodaca, 641 F.3d 1077 (9th Cir. 2011).

                                             3
In that case (which involved a substantive reasonableness challenge), we reviewed

a similar challenge to a lifetime term of supervised release imposed following the

defendant’s conviction for possession of child pornography. Id. at 1080. The

district court justified that harsh term (much more significant than Bibo’s sentence)

as “a way of saying let’s be really safe and careful” to ensure the defendant did not

commit a contact offense in the future. Id. at 1084. In that case, the defendant also

argued that the district court failed to recognize that not all possessors of child

pornography go on to commit contact offenses.1 Id. at 1082. Ultimately, the

Apodaca court was forced to conclude that “the scientific literature falls short of”

demonstrating “that possession-only Internet child pornographers were highly

unlikely to recidivate or commit more serious sex offenses.” Id. at 1084.

      The evidence to support the district court’s extremely limited conclusion is


      1
       I recognize that the defendant in Apodaca made this argument on the
substantive reasonableness prong. Therefore, Apodaca is not controlling.
However, the arguments in Apodaca are illustrative, in that they show Bibo’s claim
is more appropriately characterized as a challenge to the substantive
reasonableness of his sentence. Bibo’s real contention is that the district court
should have varied down to the statutory minimum, because the risk of going on to
commit a contact offense was low. Bibo has used the logic of a substantive
reasonableness challenge to accomplish a remand on a procedural challenge.
Although this approach seems to be a successful one on appeal, it will not likely
get Bibo the relief he seeks in the district court. All the majority has succeeded in
accomplishing is to ensure we will now hear procedural challenges on a
substantive reasonableness issue in cases like this one in the future.

                                           4
in the record, and even a cursory examination of our case law demonstrates that the

conclusions the district court drew from that evidence were entirely permissible.

Under clear error review, the only issue before us is whether there was some

evidence to show that a link exists, regardless of how significant, between

possession of child pornography and a future contact offense. The evidence before

the district court, provided by Bibo himself, was unquestionably sufficient to

support the district court’s limited concern. Given our holding in Apodaca, I am

not left with a definite and firm conviction that a mistake was made. Indeed

Apodaca also demonstrates the futility of a remand in this case when the exact

same sentence will be imposed on remand with the exact same reasoning.




                                         5
