                                                                            FILED
                            NOT FOR PUBLICATION                              MAY 26 2015

                                                                         MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                         U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 13-10428

              Plaintiff - Appellee,              D.C. No. 2:12-cr-00254-JCM-
                                                 PAL-1
  v.

ALBERT SILVA HERNANDEZ, Jr.,                     MEMORANDUM*

              Defendant - Appellant.


                    Appeal from the United States District Court
                             for the District of Nevada
                     James C. Mahan, District Judge, Presiding

                     Argued and Submitted December 10, 2014
                             San Francisco, California

Before: KOZINSKI, RAWLINSON, and MURGUIA, Circuit Judges.

       Albert Silva Hernandez, Jr. (Hernandez) appeals his jury conviction and

sentence for eight counts of sexually exploiting a child, in violation of 18 U.S.C. §

2251(a).

       1. Hernandez contends that the government impermissibly changed its



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
theory of prosecution during rebuttal argument by deviating from the jury

instruction that focused on the word “persuaded.” However, the indictment and the

evidence presented at trial provided Hernandez adequate notice of the charges

against him. See Morrison v. Estelle, 981 F.2d 425, 428-29 (9th Cir. 1992).

Therefore, we reject Hernandez’s Sixth Amendment argument.



      2. Under plain error review, there was no double counting. See United

States v. Bonilla-Guizar, 729 F.3d 1179, 1187 (9th Cir. 2013). Hernandez was

charged and convicted under a federal statute, not the state companion statute.

Because the federal statute does not contain the abuse of trust and sexual contact

enhancements as elements, there was no double counting. See United States v.

Kiefer, 760 F.3d 926, 931-32 (9th Cir. 2014).



      3. Hernandez contends that the district court erred in applying the

distribution enhancement set forth in U.S.S.G. § 2G2.1(b)(3) because he “did not

share or attempt to share the images of [the victim] with anyone other than her. . .

.” When the district court applied the distribution enhancement, it did not have the

benefit of our decision in United States v. Roybal, 737 F.3d 621 (9th Cir. 2013).

We express no view on the application of Roybal to this case, but remand the

                                          2
matter for the district court to consider in the first instance whether the distribution

enhancement may be applied when the defendant does not distribute the image to a

third party. We defer any determination on the reasonableness of the sentence

imposed pending the district court’s consideration of the remanded issue. The

panel retains jurisdiction over this appeal.

      Distribution enhancement REMANDED; AFFIRMED on all other

grounds.




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