                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        APR 3 2020
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    18-10086

                Plaintiff-Appellee,             D.C. No.
                                                2:14-cr-00229-APG-NJK-1
 v.

FRANKIE ALLEN PERAZA,                           MEMORANDUM*

                Defendant-Appellant.

                   Appeal from the United States District Court
                            for the District of Nevada
                   Andrew P. Gordon, District Judge, Presiding

                            Submitted March 24, 2020**
                               Las Vegas, Nevada

Before: W. FLETCHER, BYBEE, and WATFORD, Circuit Judges.

      A jury convicted Frankie Peraza of knowing receipt or distribution of child

pornography in violation of 18 U.S.C. § 2252(a)(2) and (b)(1). On appeal, Peraza

challenges his conviction as well as his sentence of 150 months’ imprisonment

followed by lifetime supervised release. We affirm Peraza’s conviction and


      *
             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).
                                                                           Page 2 of 5

sentence, with the exception of two conditions of Peraza’s supervised release,

which we vacate and remand.

      1. The district court did not abuse its discretion by declining to strike Juror

30 for actual bias. Ultimately, the juror unequivocally stated that he could decide

the case based solely on the facts and evidence presented in conjunction with the

law the district court instructed him to apply. We see no basis in the record to

second-guess the district court’s decision to accept as credible Juror 30’s

assurances that he could be fair and impartial. See United States v. Kechedzian,

902 F.3d 1023, 1027–29 (9th Cir. 2018).

      2. The district court properly denied Peraza’s motion to suppress his

confession. A reasonable person in Peraza’s position would have understood that

he was free to leave. Unlike in United States v. Craighead, 539 F.3d 1073, 1188–

89 (9th Cir. 2008), the circumstances in this case do not call into question the law

enforcement officer’s assertion that the defendant was free to leave. Because

Peraza was not in custody, Detective Cody was not required to inform him of his

Miranda rights, and his noncustodial confession was therefore properly admitted.

      3. Even assuming that the district court erred by not instructing the jury that

18 U.S.C. § 2252(a)(2) requires proof of knowledge that the visual depiction

contains both a minor and sexually explicit conduct, any such error was harmless.

The evidence at trial showed that Peraza used search terms that were indicative
                                                                             Page 3 of 5

only of child pornography, such as terms that included the names, ages, and

sexually explicit conduct of the minors who were depicted. Because

overwhelming evidence established that Peraza knowingly downloaded child

pornography, any instructional error was harmless. See United States v. Cherer,

513 F.3d 1150, 1155 (9th Cir. 2008).

      Peraza was not entitled to an instruction on the lesser-included offense of

possession because the evidence would not have permitted a rational jury to acquit

him of knowing receipt yet convict him of possession. See United States v.

Vallejos, 742 F.3d 902, 906 (9th Cir. 2014). In any event, Peraza did not request

the instruction and it was not plain error for the district court not to give a

lesser-included offense instruction sua sponte.

      4. Peraza also has not shown that any failure by the district court to instruct

the jury that the images must depict actual minors amounted to plain error. See

United States v. Perez, 116 F.3d 840, 848 (9th Cir. 1997). He does not contest that

the five images shown to the jury unquestionably depict actual children. Thus, his

plain error challenge on this score fails.

      5. In light of Peraza’s confession and the other evidence adduced at trial,

including testimony that the images traveled outside Nevada and back, sufficient

evidence supports Peraza’s conviction.

      6. Peraza was not entitled to a two-level, receipt-only reduction in his
                                                                           Page 4 of 5

offense level at sentencing. The evidence showed that Peraza’s conduct went

beyond the mere receipt or solicitation of child pornography; it also included the

distribution of child pornography to Agent Cody. Regardless of whether his

distribution was intentional, distribution precludes a receipt-only reduction. See

U.S.S.G. § 2G2.2(b)(1); United States v. Bleau, 930 F.3d 35, 39–40 (2d Cir. 2019)

(per curiam).

      7. The district court did not procedurally or substantively err when, after

considering the parties’ arguments and the relevant sentencing factors under 18

U.S.C. § 3553(a), it imposed a lifetime term of supervised release to ensure that

Peraza did not perpetrate a “touching offense” in the future. See United States v.

Apodaca, 641 F.3d 1077, 1080–84 (9th Cir. 2011).

      8. Consistent with the government’s concession on appeal, we vacate

Special Conditions 4 and 6 and remand for the limited purpose of allowing the

district court to appropriately narrow the language of those conditions.

      The district court did not plainly err in imposing Special Condition 10, the

imposition of which is supported by our decision in United States v. Rearden, 349

F.3d 608, 620–621 (9th Cir. 2003). As we have previously explained, an error

“cannot be plain where there is no controlling authority on point and where the

most closely analogous precedent leads to conflicting results.” United States v.

Gnirke, 775 F.3d 1155, 1164 (9th Cir. 2015) (internal quotation marks omitted).
                                                                        Page 5 of 5

     Peraza’s motion for judicial notice, filed on January 31, 2020, is granted.

     AFFIRMED in part, VACATED and REMANDED in part only as to

Special Conditions 4 and 6.
