                                                                           FILED
                           NOT FOR PUBLICATION                              MAY 24 2011

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U.S . CO U RT OF AP PE A LS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 08-50451

              Plaintiff - Appellee,              D.C. No. 2:07-cr-01244-PSG-1

  v.
                                                 MEMORANDUM *
EDUARDO ROBLES MOTA, AKA Lalo
Mota,

              Defendant - Appellant.


                    Appeal from the United States District Court
                        for the Central District of California
                    Philip S. Gutierrez, District Judge, Presiding

                     Argued and Submitted December 8, 2010
                              Pasadena, California

Before: B. FLETCHER, BERZON, and CALLAHAN, Circuit Judges.

       Eduardo Robles Mota pleaded guilty to one count of possession of child

pornography, 18 U.S.C. y 2252A(a)(5)(B). He was sentenced to the statutory

maximum of 10 years imprisonment, followed by a life term of supervised release.

Mota appeals his sentence, arguing that it is both procedurally erroneous and


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
substantively unreasonable. We have jurisdiction pursuant to 28 U.S.C. y 1291

and 18 U.S.C. y 3742. We vacate the sentence and remand for resentencing.

      Preliminarily, we address Mota's motion to striµe the December 2007

Pretrial Services Letter informing the district court of his violation of the

conditions of pretrial release. We deny the motion. Letters from Pretrial Services

may constitute part of the record on appeal, when, as here, the letter was relevant to

sentencing and the government relied on the letter in its sentencing memorandum.

See Circuit Rule 30-1.10 ('In all cases in which the presentence report is

referenced in the brief, the party filing such brief must forward 4 paper copies of

the presentence report and may forward 4 copies of any other relevant confidential

sentencing documents under seal to the Clerµ of the Court of Appeals.' (emphasis

added)). Mota's motion to striµe the letter is therefore denied. The government's

related motion to enlarge the record is denied as unnecessary.

      We turn now to Mota's challenges to his sentence. Our review is limited to

determining whether Mota's sentence is reasonable. Gall v. United States, 552

U.S. 38, 46 (2007); United States v. Apodaca, No. 09-50372, -- F.3d --, 2011 WL

1365794, at *1 (9th Cir. April 12, 2011); United States v. Carty, 520 F.3d 984, 993

(9th Cir 2008). We 'must first ensure that the district court committed no

significant procedural error, such as . . . failing to adequately explain the chosen


                                           2
sentence. . . .' Gall, 552 U.S. at 51. Where, as here, a defendant failed to object

on the ground that the district court committed procedural error in failing to

explain the choice of sentence, we review for plain error. United States v.

Valencia-Barragan, 608 F.3d 1103, 1108 (9th Cir. 2010).

      A district court is required to state the reasons for the sentence imposed only

in enough detail to satisfy an appellate court that it has 'considered the parties'

arguments and has a reasoned basis for exercising [its] own legal decisionmaµing

authority.' Rita v. United States, 551 U.S. 338, 356 (2007). The extent of the

explanation necessarily depends on the circumstances of each case. Id. at 357.

Thus, '[c]ircumstances may well maµe clear that the judge rests his decision upon

the Commission's own reasoning that the Guidelines sentence is a proper sentence

(in terms of y 3553(a) and other congressional mandates) in the typical case, and

that the judge has found that the case before him is typical.' Id. 'Where the

defendant or prosecutor presents nonfrivolous reasons for imposing a different

sentence, however, the judge will normally go further and explain why he has

rejected those arguments.' Id. These principles apply equally to the term of

imprisonment and the supervised release components of a sentence. See Apodaca,

2011 WL 1365794, at *2-3; Carty, 520 F.3d at 992-93.




                                           3
      Here, the presentence investigation report calculated the Guidelines range

pursuant to the oft-criticized child pornography Guideline, U.S.S.G. y 2G2.2. See

United States v. Henderson, No. 09-50544, -- F.3d -- , 2011 WL 1613411(9th

Cir. Apr. 29, 2011) (setting forth the history of y 2G2.2). Despite Mota's category

I criminal history and his acceptance of responsibility, the high offense base level

and the numerous enhancements provided for in y 2G2.2 resulted in a Guidelines

range of 121 to 151 months, reduced to 120 months in light of the statutory

maximum of 10 years. See 18 U.S.C. y 2252A(b)(2). The presentence

investigation report recommended the statutory maximum.

      Mota requested a mid-statutory range sentence of 46 months and that he be

ordered to submit to mental health treatment. He repeatedly emphasized the

advisory nature of the Guidelines and argued that the Guidelines range in his case

was unreasonable in light of Gall, Rita, and Kimbrough v. United States, 128 S.

Ct. 558 (2007). Mota further argued that the 18 U.S.C. y 3553(a) factors justify a

mid-statutory range in light of his acceptance of responsibility; his lacµ of criminal

history; his education, steady employment history and exemplary record of

volunteering activities; the support of his family and his community; the sexual

abuse he had suffered as a child and the pain he has been suffering from being




                                           4
unable to disclose his sexual orientation to his family; and his mental illness and

need for treatment.

      On its part, the government requested the statutory maximum. The

prosecutor emphasized the serious nature of the offense and, relying in part on the

December 2007 Pretrial Services letter, argued that Mota poses a threat to the

community.

      The district judge sentenced Mota to the statutory maximum of 10 years,

followed by a life term of supervised release. Despite Mota's far from frivolous

arguments for leniency and the severity of the term of incarceration and supervised

release ultimately imposed, the district judge's explanation of his choice of the

statutory maximum was limited to the rote recitation of the y 3553(a) factors and

statements that the statutory maximum is a 'reasonable,' 'sufficient,' and 'no

greater than necessary' punishment.

      In the circumstances of the case, the district judge's inadequate explanation

renders the sentence procedurally erroneous. See Rita, 551 U.S. at 357. The error

is plain. See United States v. Ameline, 409 F.3d 1073, 1078 (9th Cir. 2005) (en

banc) (error is plain if it is contrary to the law at the time of appeal). The error also

affects Mota's substantial rights. See United States v. Olano, 507 U.S. 72, 734

(1993). Given the strength of the factors supporting a mid-statutory range sentence


                                            5
for Mota, it is liµely that had the district judge specifically considered those

factors, the sentence would have been lower than the statutory maximum term of

incarceration followed by lifetime supervised release. See Gall, 552 U.S. at 52

(noting sentencing judge's obligation 'to consider every convicted person as an

individual' (quotation omitted)); id. at 55 (noting 'the need to avoid unwarranted

similarities among [defendants] who [are] not similarly situated' (emphasis

removed)). Finally, the case warrants the exercise of our discretion to correct the

procedural error, as the lacµ of a reasoned explanation of a judge's choice to

sentence a defendant to the statutory maximum may affect the fairness, integrity,

and the public reputation of criminal proceedings. See Ameline, 409 F.3d at 1078.

      The sentence is VACATED and the case REMANDED to the district court

for resentencing.




                                            6
                                                                               FILED
United States v. Mota, No. 08-50451                                             MAY 24 2011

                                                                           MOLLY C. DWYER, CLERK
CALLAHAN, Circuit Judge, dissenting:                                         U.S . CO U RT OF AP PE A LS




      I dissent. Although the district court could have offered a further

explanation for the sentence he imposed, Mota offered no objection to the

explanation in the district court, and, in the context of this case, the court's

statements were sufficient to allow us to ascertain its reasons. See United States v.

Rita,551 U.S. 338, 356 (2007). There is no suggestion that the district court did

not consider the arguments advanced by Mota. Moreover, a number of factors

peculiar to Mota support the sentence including his violation of the conditions of

his pretrial release by possessing child pornography, his admitted trading of child

pornography over the internet, and his placing of himself in contact with minors

through worµ and voluntary activities.
