                           NOT FOR PUBLICATION                            FILED
                    UNITED STATES COURT OF APPEALS                          JUN 9 2020
                                                                       MOLLY C. DWYER, CLERK
                                                                        U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    19-30036

                Plaintiff-Appellee,             D.C. No. 4:16-CR-00005-RRB

 v.
                                                MEMORANDUM*
ERIC WHITEBREAD,

                Defendant-Appellant.

                   Appeal from the United States District Court
                            for the District of Alaska
                Ralph R. Beistline, Senior District Judge, Presiding

                             Submitted June 3, 2020**
                               Anchorage, Alaska

Before: CHRISTEN, WATFORD, and BADE, Circuit Judges.

      Eric Whitebread challenges his conviction for distribution of child

pornography, a two-level sentencing enhancement for obstruction of justice, and a

five-level enhancement for a pattern of sexual abuse of a minor. We have

jurisdiction pursuant to 28 U.S.C. § 1291. We affirm Whitebread’s conviction for


      *
             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).
distribution of child pornography and the application of the five-level sentencing

enhancement for a pattern of sexual abuse of a minor. We vacate the two-level

enhancement for obstruction of justice and remand for the district court to consider

whether the record supports the requisite factual findings. Because the parties are

familiar with the facts, we do not recount them here except as necessary to resolve

the issues on appeal.

      1. The government presented sufficient evidence for a rational fact-finder to

infer that Whitebread knew Vuze was a file-sharing program that allowed others to

upload files from his shared folder. Evidence is sufficient to support a conviction

for distribution of child pornography where it “shows that the defendant

maintained child pornography in a shared folder, knew that doing so would allow

others to download it, and another person actually downloaded it.” United States

v. Budziak, 697 F.3d 1105, 1109 (9th Cir. 2012); see also United States v.

McElmurry, 776 F.3d 1061, 1065 (9th Cir. 2015). Evidence of a defendant’s

“technical knowledge and familiarity” with file-sharing software can be sufficient

to establish the defendant “knowingly” distributed child pornography under 18

U.S.C. § 2252(a)(2). Budziak, 697 F.3d at 1109–10.

      The investigating agent testified that Vuze’s basic interface made plain in at

least four different tabs that file-sharing was taking place, including one with

downloads and uploads graphically represented as arrows directed to or from the


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user. Files downloaded through Vuze immediately went into the Vuze Downloads

folder on Whitebread’s computer, the shared folder that made the files available for

upload to any peer on the network. There were even several downloads and

uploads in progress at the time Whitebread’s Macbook was seized.

      Additionally, Whitebread had several customized settings indicating his

“technical knowledge and familiarity” with Vuze’s functionality. Id. at 1110. The

government presented evidence that Vuze required users to agree to terms of

service that explained Vuze automatically shares files with peers on the network.

Vuze had been configured as a separate icon on Whitebread’s Macbook application

dock, it was set to start automatically once someone logged into the “Holeski” user

account, and the Macbook was configured not to go into sleep mode while Vuze

downloads were in progress. The “advanced” user option was selected in the Vuze

preferences, and a number of customized settings were enabled, including specific

subscriptions for child pornography. This evidence was sufficient to support

Whitebread’s conviction for knowing distribution of child pornography pursuant to

18 U.S.C. § 2252(a)(2).

      2. The district court erred by not making factual findings to support the two-

level enhancement for obstruction of justice, relying instead on the jury’s verdict to

conclude that Whitebread perjured himself at trial. A district court may not rely on

the jury’s verdict alone to support the obstruction enhancement, United States v.


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Alvarado-Guizar, 361 F.3d 597, 603 (9th Cir. 2004); the district court must find

that a defendant’s testimony was false, material, and willful, see United States v.

Dunnigan, 507 U.S. 87, 96–97 (1993). Express findings on all three prongs are

necessary for perjury to amount to obstruction of justice. United States v. Castro-

Ponce, 770 F.3d 819, 822 (9th Cir. 2014).

      Here, the district court announced only that “[t]he jury did conclude the

defendant was lying in his description of events, thus justifying the obstruction of

justice enhancement for another two [levels].” The government contends that the

district court did not err because it expressly adopted the findings in the

Presentence Investigation Report (PSR). But the language and reasoning in

Castro-Ponce indicates the court’s unique concern with the seriousness of an

obstruction charge, and “the unintended consequence of chilling a criminal

defendant’s willingness to take the stand and give testimony in his or her defense.”

Id. at 823. Because Castro-Ponce expressly “decline[d] to adopt a more forgiving

standard,” id., a district court may not adopt the findings of the PSR in lieu of

making explicit factual findings on the elements of perjury for the obstruction of

justice enhancement. See United States v. Herrera-Rivera, 832 F.3d 1166, 1175

(9th Cir. 2016). Because the district court did not make explicit findings that

Whitebread’s statements were false, material, and willful, we vacate the

enhancement and remand for resentencing.


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      3. The district court did not err when it relied on the findings in the PSR to

apply the five-level enhancement on the basis of two separate incidents of sexual

abuse of a minor. The Federal Rules of Evidence do not apply at sentencing and

the information a district court may consider is “largely unlimited” in scope,

including hearsay evidence and uncorroborated statements. United States v.

Christensen, 732 F.3d 1094, 1102 (9th Cir. 2013) (quoting Nichols v. United

States, 511 U.S. 738, 747 (1994)). For the purpose of U.S.S.G. § 2G2.2(b)(5), this

may also include evidence of sexual abuse that may be decades old. See United

States v. Garner, 490 F.3d 739, 743 (9th Cir. 2007).

      Whitebread concedes that clear and convincing evidence supported the

findings in the PSR regarding the 2011 conduct. Notably, according to the PSR,

that conduct alone comprised multiple incidents, which would be sufficient to meet

the requirements of § 2G2.2. See U.S.S.G. § 2G2.2, cmt. n.1.

      The PSR contained sufficient indicia of reliability in its description of

Whitebread’s relationship with a 15-year-old girl to establish it was one of at least

two incidents of sexual abuse of a minor. See United States v. Marin-Cuevas, 147

F.3d 889, 895 (9th Cir. 1998). Whitebread’s ex-wife’s statements regarding the

relationship were partially corroborated: during the investigation for the 2011

sexual abuse allegation, Whitebread’s ex-wife produced copies of three letters the

girl had written to Whitebread during their relationship, and she told investigators


                                          5
that this relationship and Whitebread’s self-admitted attraction to teenage girls

were part of the reason for their divorce. This evidence falls within the “wide net”

that permits a district court to consider “any conceivable history of sexual abuse”

when applying the enhancement under § 2G2.2(b)(5). Garner, 490 F.3d at 743.

      AFFIRMED IN PART, VACATED IN PART AND REMANDED FOR

RESENTENCING.




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