                                                                           FILED
                           NOT FOR PUBLICATION                              OCT 28 2010

                                                                        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. 09-10421

              Plaintiff - Appellee,              D.C. No. 2:08-cr-173-EJG-EJG

  v.                                             MEMORANDUM *

RALPH WILLIAM ADAMSON,

              Defendant - Appellant.



                   Appeal from the United States District Court
                      for the Eastern District of California
                 Edward J. Garcia, Senior District Judge, Presiding

                      Argued and Submitted October 5, 2010
                            San Francisco, California

Before: KLEINFELD and GRABER, Circuit Judges, and MOLLOY, District
        Judge.**

       Defendant Ralph Adamson appeals his prison sentence of 78 months

following his guilty plea to one count of possessing child pornography, in violation



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


        **
              The Honorable Donald W. Molloy, United States District Judge for
the District of Montana, sitting by designation.
of 18 U.S.C. § 2252(a)(4)(B). Adamson possessed 53 images of child

pornography depicting known child victims, roughly 6,000 images characterized

by the probation officer in the presentence report as “suspected pre-teen and teen

child pornography and child erotica,” and more than 9,000 composite sexual

images created by Adamson using photo manipulation software. The composite

images consist of faces of identifiable children electronically cut and pasted onto

adult models in scenes depicting sexually explicit activity.

      The presentence investigation report recommended an adjusted offense level

of 31, including a five-level increase under U.S.S.G. § 2G2.2(b)(7)(D) because the

offense involved 600 or more images. Adamson objected, arguing that the

composite images do not meet the definition of child pornography. He also

objected to including in the image count the undoctored images, contending that a

lay person would not find that such images are of minors. The record suggests that

no one at the sentencing hearing looked at the images. Without viewing the

images or hearing testimony, the district court ruled that the 9,000-plus composite

images qualified as child pornography under 18 U.S.C. § 2256(8)(C), and then

applied the five-level increase because there were 600 or more images. The district

court, on the record, did not determine whether any of the 6,000 or so undoctored

images also constitute child pornography.


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      Adamson insists that the sentencing court erred in applying the five-level

increase because it either misapplied 18 U.S.C. § 2256(8)(C) or, in the alternative,

that the statute violates the First Amendment. Neither issue is ripe because it is

unclear whether the district court resolved the disputed issues of fact, as required,

at sentencing. See Fed. R. Crim. P. 32(i)(3)(B). Moreover, to the extent that the

court did make factual findings, the findings are not reviewable because the

sentencing judge apparently did not view any of the disputed images, so the

findings are not supported by the record.

      We vacate and remand for the district court to make a factual determination

on whether the disputed undoctored images include a sufficient number of child

pornography images to warrant the five-level increase under U.S.S.G. §

2G2.2(b)(7)(D). If they do not, the district court shall then make a factual

determination on whether any of the composite images are child pornography. If

so, the district court shall determine whether they include a sufficient number of

images to warrant the five-level increase. The court need not view any images if

both parties concede that the number is within a particular Guideline or if the

parties stipulate to the number that should be counted as child pornography.

      VACATED and REMANDED.




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