                                                                             FILED
                           NOT FOR PUBLICATION                               DEC 24 2012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. 11-50265

              Plaintiff - Appellee,              D.C. No. 5:05-cr-00056-VAP-1

  v.
                                                 MEMORANDUM *
FERNANDO ESPARZA,

              Defendant - Appellant.


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

                     Argued and Submitted November 5, 2012
                              Pasadena, California

Before: REINHARDT and THOMAS, Circuit Judges, and SEDWICK, District
Judge.**

       Defendant-appellant Fernando Esparza (“Esparza”) appeals from his

sentence for distribution of child pornography in violation of 18 U.S.C. §


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The Honorable John W. Sedwick, District Judge for the U.S. District
Court for Alaska, sitting by designation.

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2252A(a)(2)(A). The district court applied a five-level sentencing enhancement

for the number of images involved in the offense under § 2G2.2(b)(6)(D) of the

November 2002/April 2003 version of the United States Sentencing Guidelines

(“Guidelines”), because, factoring in the images found in Esparza’s possession, it

concluded that the offense included more than 600 images of child pornography.

The district court relied on the definition of relevant conduct in § 1B1.3(a)(1) of

the Guidelines.

      Esparza argues that the district court erred when it included the images in his

possession as relevant conduct, relying on United States v. Williamson, 439 F.3d

1125 (9th Cir. 2006). The government argues that Williamson is not binding

precedent. But we cannot reconsider an issue that a panel has given reasoned

consideration in a previous case, even if the earlier panel’s consideration of the

issue was not strictly necessary. United States v. Johnson, 256 F.3d 895, 914-15

(9th Cir. 2001) (en banc) (Kozinski, J., concurring); see also McOmie-Gray v.

Bank of Am. Home Loans, 667 F.3d 1325, 1329 (9th Cir. 2012). We should only

revisit an issue when convinced that the earlier panel did not make a deliberate

decision to adopt the rule of law it announced. Johnson, 256 F.3d at 915-16. We

therefore conclude that Williamson controls here, so the images Esparza merely

possessed may not be included as relevant conduct under § 1B1.3(a)(1). Thus, the



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district court erred.

       We decline to consider for the first time on appeal whether § 1B1.3(a)(2)

supports use of a five-level enhancement. We leave that issue for consideration by

the district court.

       VACATED AND REMANDED for further proceedings consistent with

this decision.




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