                                                                           FILED
                           NOT FOR PUBLICATION                              NOV 19 2009

                                                                       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. 08-10575

             Plaintiff - Appellee,               D.C. No. CR-07-00603-JW-1

  v.
                                                 MEMORANDUM *
KENNETH VAN AALSBURG,

             Defendant - Appellant.



                    Appeal from the United States District Court
                      for the Northern District of California
                      James Ware, District Judge, Presiding

                     Argued and Submitted November 4, 2009
                            San Francisco, California

Before: B. FLETCHER, CANBY, and GRABER, Circuit Judges.

       Defendant Kenneth Van Aalsburg pleaded guilty to possession of child

pornography in violation of 18 U.S.C. § 2252(a)(4)(B). He appeals from the

district court’s application of certain sentencing enhancements. We conclude that

the sentencing enhancements were properly applied and, thus, affirm.




        *
         This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      1. Defendant first contends that the district court erred by applying a

"preponderance of the evidence" standard because the disputed sentencing

enhancements had a disproportionate effect on his sentence. United States v.

Jordan, 256 F.3d 922, 928 (9th Cir. 2001). We hold that any error was harmless

beyond a reasonable doubt because clear and convincing evidence supported the

disputed enhancements. See United States v. Mezas de Jesus, 217 F.3d 638, 642

(9th Cir. 2000) (stating harmless error standard).

      2. We review de novo the district court’s interpretation of the Sentencing

Guidelines, and we review for clear error the district court’s findings of fact.

United States v. Garro, 517 F.3d 1163, 1167 (9th Cir. 2008). "We have noted an

intracircuit conflict regarding whether we review application of the Guidelines to

the facts for an abuse of discretion or de novo." United States v. Rivera, 527 F.3d

891, 908 (9th Cir.), cert. denied, 129 S. Ct. 654 (2008). Again, though, the choice

of a standard does not affect the outcome here, because the district court properly

applied the sentencing enhancements.

      There was sufficient evidence that Defendant possessed more than 600

images of actual children engaged in sexually explicit conduct. All 7000 images

were in Defendant’s possession even though some of the images had been deleted




                                           2
or otherwise placed in "lost space" on Defendant’s computer drive. And actual

children need not be specifically identified.

      There was also sufficient evidence that Defendant possessed material

involving prepubescent minors and material displaying sadistic or masochistic

conduct. First, Defendant admitted to possessing such material at the time that he

pleaded guilty. Second, there was testimony that some images of these types

depicted actual, identified children engaged in sexual conduct. Third, the district

court itself viewed some images.

      The government did not have to prove that the children depicted were still

alive at the time of the offense. Child pornography is unprotected speech not only

because of the ongoing harm inflicted on children by the "permanent record" of

their suffering, but also because of the harm involved in its production. Ashcroft v.

Free Speech Coalition, 535 U.S. 234, 249-50 (2002) (citing New York v. Ferber,

458 U.S. 747, 759-60 (1982)).

      AFFIRMED.




                                           3
