                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       MAY 11 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    15-10582

                Plaintiff-Appellee,             D.C. No.
                                                3:15-cr-00001-HDM-VPC-1
 v.

CLAY SERENBETZ,                                 MEMORANDUM*

                Defendant-Appellant.

                   Appeal from the United States District Court
                            for the District of Nevada
                  Howard D. McKibben, District Judge, Presiding

                            Submitted April 20, 2017**
                             San Francisco, California

Before: PAEZ and IKUTA, Circuit Judges, and FABER,*** District Judge.

      Clay Serenbetz appeals from the 41-month sentence imposed following his

guilty plea conviction for possession of child pornography, in violation of 18

U.S.C. § 2252A(a)(5)(B). We have jurisdiction pursuant to 28 U.S.C. § 1291. We


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      ***
             The Honorable David A. Faber, United States District Judge for the
affirm in part and vacate and remand in part.

      Serenbetz challenges his sentence as procedurally erroneous and

substantively unreasonable. The “courts of appeals must review all sentences . . .

under a deferential abuse-of-discretion standard.” Gall v. United States, 552 U.S.

38, 41 (2007). “We review de novo the district court’s interpretation of the United

States Sentencing Guidelines (`the Guidelines’), review for clear error the district

court’s factual determinations, and review for abuse of discretion the district

court’s applications of the Guidelines to the facts.” United States v. Holt, 510 F.3d

1007, 1010 (9th Cir. 2007). “Where a defendant has failed to raise an objection to

a sentencing error in the district court, the decision is reviewed for plain error.”

United States v. Bonilla-Guizar, 729 F.3d 1179, 1187 (9th Cir. 2013).

      Serenbetz’s Guidelines range was increased by thirteen levels because the

child pornography offense (i) involved the use of a computer, see U.S.S.G. §

2G2.2(b)(6); (ii) involved prepubescent minors, see U.S.S.G. § 2G2.2(b)(2); (iii)

portrayed sadistic, masochistic or violent content, see U.S.S.G. § 2G2.2(b)(4); and

(iv) contained more than 600 images, see U.S.S.G. § 2G2.2(b)(7)(D). Serenbetz

contends that there was no evidence in the record, other than information the

district court ordered stricken from the Presentence Report (PSR), to support

application of the latter three enhancements. Because Serenbetz did not object to


Southern District of West Virginia, sitting by designation.

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the enhancements at the sentencing hearing, we review them for plain error.

Serenbetz fails to satisfy this standard because there was clear and convincing

evidence, see United States v. Hymas, 780 F.3d 1285, 1289 (9th Cir. 2015); United

States v. Jordan, 256 F.3d 922, 927-28 (9th Cir. 2001), to show Serenbetz’s

knowing possession of the computer containing the child pornography but also his

awareness of the nature of the images involved. Because Serenbetz failed to object

at sentencing, the district court was entitled to rely on paragraphs 29-30, 32-34, 36,

and 43-46 of the PSR to support application of the enhancements. See Fed. R.

Crim. P. 32(i)(3)(A); United States v. Ameline, 409 F.3d 1073, 1085 (9th Cir.

2005) (en banc). Furthermore, during the course of the proceedings below,

Serenbetz made numerous admissions, through counsel, see, e.g., 2ER74-76, 87-

88, 90, 92, 99, and 116, to support application of the enhancements. See United

States v. Hernandez-Hernandez, 431 F.3d 1212, 1219 (9th Cir. 2005). Finally,

materials submitted by Serenbetz in connection with his motion for a variance, see

3SER188, 195-96, and 213, provide clear and convincing evidence that Serenbetz,

and not someone else, knowingly downloaded the child pornography found on his

computer. Our precedent leaves no doubt that the materials described in

paragraphs 30, 32, and 33 of the PSR qualify as sadistic or masochistic conduct

within the meaning of U.S.S.G. § 2G2.2(b)(4). See Holt, 510 F.3d at 1011; United

States v. Rearden, 349 F.3d 608, 615-16 (9th Cir. 2003). For all these reasons, the


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district court did not plainly err in applying the three enhancements.

      Serenbetz’s additional arguments regarding alleged procedural errors in his

sentence likewise fail. The district court did not commit procedural error when it

properly calculated Serenbetz’s Guidelines range, considered his arguments for a

below-guidelines sentence, granted a downward departure from the applicable

guideline range, and thoroughly explained its reasons for imposing a below-

guidelines sentence. “[D]istrict courts are not obligated to vary from the child

pornography Guidelines on policy grounds if they do not have, in fact, a policy

disagreement with them.” United States v. Henderson, 649 F.3d 955, 964 (9th Cir.

2011). Furthermore, the record does not support Serenbetz’s contention that the

district court did not appreciate its discretion to depart to a noncustodial sentence

or to depart from the Guidelines especially where, as here “it did in fact impose a

sentence that varied from the Guidelines range—just not by as many months as

[Serenbetz] requested.” United States v. Ayala–Nicanor, 659 F.3d 744, 752 (9th

Cir. 2011).

      With respect to the substantive reasonableness of Serenbetz’s sentence, the

record reflects that both the 41-month custody sentence and 20-year term of

supervised release are reasonable in light of the “§ 3553(a) factors and the totality

of circumstances” and that the sentence “is well supported by the record and the

governing law.” United States v. Blinkinsop, 606 F.3d 1110, 1118 (9th Cir. 2010);


                                           4
see also United States v. Apodaca, 641 F.3d 1077, 1084 (9th Cir. 2011); United

States v. Daniels, 541 F.3d 915, 923-24 (9th Cir. 2008); United States v. Carty, 520

F.3d 984, 995-96 (9th Cir. 2008) (en banc).

      We remand to the district court with instructions to modify Special

Condition 5 to clarify that the prohibition regarding materials depicting and/or

describing child pornography does not apply to materials necessary to, and used

for, a collateral attack, or to materials prepared or used for the purposes of court-

mandated sex offender treatment. See United States v. Cope, 527 F.3d 944, 957-58

(9th Cir. 2008).

      Finally, we conclude that Serenbetz’s constitutional challenges to his

sentence are without merit. See United States v. Treadwell, 593 F.3d 990, 1017-18

(9th Cir. 2010); United States v. Meiners, 485 F.3d 1211, 1213 (9th Cir. 2007) (per

curiam); United States v. Brady, 895 F.2d 538, 540 (9th Cir. 1990).

      AFFIRMED in part; VACATED AND REMANDED in part.




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