                                                                           FILED
                           NOT FOR PUBLICATION
                                                                           AUG 25 2016
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No.   15-50439

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

FERNANDO ESPARZA,                                MEMORANDUM*

              Defendant-Appellant.


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

                      Argued and Submitted August 3, 2016
                              Pasadena, California

Before: O’SCANNLAIN, RAWLINSON, and CALLAHAN, Circuit Judges.

      Petitioner Fernando Esparza appeals his sentence for distributing child

pornography in violation of 18 U.S.C. § 2252A(a)(2)(A). The facts of this case are

known to the parties, and we do not repeat them here. We have jurisdiction under

28 U.S.C. § 1291.

         *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
                                          I

      Esparza argues the district court erred in applying a five-level enhancement

under U.S.S.G. § 2G2.2(b)(6)(D). The district court applied such enhancement

after determining that Esparza’s possession of roughly 1,150 images of child

pornography was “part of the same course of conduct or common scheme or plan”

as his distribution offense. See U.S.S.G. § 1B1.3(a)(2). We are satisfied that the

enhancement was supported by the record.

      For conduct to be “part of the same course of conduct or common scheme or

plan” within the meaning of Guidelines § 1B1.3(a)(2), “[t]here must be ‘sufficient

similarity and temporal proximity to reasonably suggest that repeated instances of

criminal behavior constitute a pattern of criminal conduct.’” United States v.

Hahn, 960 F.2d 903, 910 (9th Cir. 1992) (quoting United States v. Santiago, 906

F.2d 867, 872 (2d Cir. 1990)).

      The district court correctly reasoned that distribution and possession of child

pornography are “tightly connected,” since “you cannot distribute images unless,

of course, you possess them.” Circumstances specific to Esparza further indicate

that his possession and distribution were part of the same course of criminal

conduct. Esparza’s possession of the 1,150 images occurred contemporaneously

with his distribution, and the images were co-mingled among those he distributed


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on the floppy disks in his home–facts suggesting that Esparza’s possession and

distribution overlapped in time as well as purpose.

                                          II

      Esparza next argues that the court’s imposed sentence violated both the law

of the case and the rule of mandate doctrines. We disagree.

      When considering the factors delineated in 18 U.S.C. § 3553, the district

court stated in passing that Esparza “distributed pornography to young girls” and

that he engaged in chats “with young girls.” Esparza argues that these references

violated the law of the case and rule of mandate doctrines since we had already

held that the application of a seven-level enhancement was invalid because the

record contained no verification that any of Esparza’s conversation partners “was

an actual minor.” United States v. Esparza, 310 F. App’x 80, 82 (9th Cir. 2009).

But the district court did not seek to impose a seven-level enhancement in defiance

of our previous ruling. Rather, it accepted that ruling and simply made a

determination in response to our later instructions that it consider whether §

1B1.3(a)(2) applied. See United States v. Esparza, 489 F. App’x 204 (9th Cir.

2012).

                                          III




                                          3
      Esparza next argues that a condition of his supervised release—Condition

11—raises First Amendment concerns that require remand. Again, we disagree.

      This Court has examined a similar condition and concluded that although the

condition’s language raised First Amendment concerns, remand was not necessary

because the condition could be construed to avoid the problem. See United States

v. Gnirke, 775 F.3d 1155, 1166 (9th Cir. 2015). Although the district court did not

explicitly state that Condition 11 was limited to adult pornography, reading the

condition as so limited makes sense, in part because the court imposed an

additional condition—Condition 12—as restricting access to child pornography.

Thus, we construe Condition 11 as only applying to “any materials with depictions

of ‘sexual explicit conduct’ involving adults, defined as explicit sexually

stimulating depictions of adult sexual conduct that are deemed inappropriate by

[Esparza’s] probation officer.” Gnirke, 775 F.3d at 1166.

                                          IV

      The district court’s judgment and sentence is

      AFFIRMED




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