                                                                            FILED
                            NOT FOR PUBLICATION                              NOV 28 2012

                                                                         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. 11-50119

              Plaintiff - Appellee,               D.C. No. 2:10-cr-00096-ODW-1

  v.
                                                  MEMORANDUM *
CHRISTOPHER MAGGIO,

              Defendant - Appellant.



                    Appeal from the United States District Court
                       for the Central District of California
                     Otis D. Wright, District Judge, Presiding

                      Argued and Submitted October 11, 2012
                               Pasadena, California

Before: KLEINFELD and McKEOWN, Circuit Judges, and QUIST, Senior
District Judge.**

       Defendant appeals his sentence of 90 months of imprisonment and 20 years

of supervised release, imposed as a result of his guilty plea to one count of




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Gordon J. Quist, Senior District Judge for the U.S.
District Court for Western Michigan, sitting by designation.
possession of child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B). We

have jurisdiction pursuant to 18 U.S.C. § 3742(a).

I. Breach of the Plea Agreement

      Because it was not raised below, we review the defendant’s challenge

regarding breach of the plea agreement for plain error. United States v.

Maldonado, 215 F.3d 1046, 1051 (9th Cir. 2000). The government did not breach

the plea agreement either by submitting the victim impact statements or by

suggesting that the defendant “had already recidivated” because of his uncharged

2007 conduct. The defendant likens this case to United States v. Johnson, 187

F.3d 1129, 1135 (9th Cir. 1999) and United States v. Whitney, 673 F.3d 965, 969-

70 (9th Cir. 2012). The victim impact statements in this case are at least indirectly

related to the charged offense, making Johnson inapposite here. This case also

lacks the contradictory or duplicitous conduct by the government that was present

in Whitney. Here, the government consistently argued for the agreed upon 51-

month sentence. The government’s submissions in support of that sentence were a

legitimate response to defendant’s request for a one-day sentence, not a breach of

the plea agreement. While we might not reach the same result otherwise, here the

defendant argued for a departure from the 51-month sentence in the plea agreement

in favor of a one-day sentence. Within the boundaries of its commitments in the


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plea agreement, the government could legitimately counter this argument, as it did,

by noting the defendant’s uncharged 2007 conduct and the impact of the

defendant’s conduct, together with the conduct of others, on the children

represented in the images. Thus, the defendant has not established that there was a

clear or obvious error that affected the fairness, integrity, or public reputation of

the judicial proceedings. United States v. Wright, 625 F.3d 583, 607-08 (9th Cir.

2010).

II. Challenges to the Sentence

         We review the defendant’s challenges to his sentence by first considering

whether the district court committed significant procedural error, and then

considering the substantive reasonableness of the sentence. United States v. Carty,

520 F.3d 984, 993 (9th Cir. 2008) (en banc). The district court did not err by

considering the victim impact statements in its sentencing decision. The

government represented that the statements came from children (or the families of

children) depicted in images on the defendant’s computer; the children portrayed in

these images are the victims of the possession of child pornography. See United

States v. Kennedy, 643 F.3d 1251, 1263 (9th Cir. 2011). The statements were

therefore relevant, and to the extent portions of them addressed conduct unrelated

to the charged offense, we must presume that the judge properly applied the law


                                            3
and considered only the evidence he knew to be admissible. Gretzler v. Stewart,

112 F.3d 992, 1009 (9th Cir. 1997).

        The sentencing colloquy reflects the district court’s recognition that it could

vary from the Sentencing Guidelines on policy grounds and stated instead its

reasons for agreeing with them. See United States v. Henderson, 649 F.3d 955,

964 (9th Cir. 2011) (district courts are not obligated to vary from child

pornography Guidelines on policy grounds if they do not have a policy

disagreement with them). The district court appreciated its discretion, articulated

its reasons for following the Guidelines, and did not err by declining to vary from

them.

        In explaining the sentence, the district court started with the Guidelines

range, discussed why it rejected the parties’ positions, indicated that it considered

the 18 U.S.C. § 3553(a) factors, and described its reasons for ultimately choosing

the 90-month prison term and 20 years of probation. The district court found some

mitigating factors not credible and identified several aggravating factors that

justified the sentence near the upper range of the Guidelines. The district court

adequately explained the sentence selected and its reasons for rejecting the

sentence requested by the parties. “[T]he district court must explain [the sentence]




                                            4
sufficiently to permit meaningful appellate review” but “need not tick off each of

the § 3553(a) factors to show that it has considered them.” Carty, 520 F.3d at 992.

      In evaluating the substantive reasonableness of a sentence, we consider the

totality of the circumstances and may not reverse “just because we think a different

sentence is appropriate.” Carty, 520 F.3d at 993. Describing the reasons for the

sentence, the district judge pointed primarily to the seriousness of the offense, as

conveyed by the victim impact statements, and also to the need to protect the

public, based on the risk he perceived from the defendant having failed to correct

his behavior after the 2007 contact with the FBI. In light of the totality of the

circumstances and the § 3553(a) sentencing factors, the district court’s sentence

within the Guidelines range is sufficient, but not greater than necessary, to

accomplish the sentencing goals of § 3553(a) and is thus substantively reasonable.

III. Restitution

      After the entry of judgment below, this court decided United States v.

Kennedy, 643 F.3d 1251 (9th Cir. 2011). In Kennedy, we held that to award

restitution pursuant to § 2259(b)(1), a district court must determine (1) “that the

individual seeking restitution is a ‘victim’ of the defendant’s offense,” (2) “that the

defendant’s offense was a proximate cause of the victim’s losses,” and (3) “that the

losses so caused can be calculated with ‘some reasonable certainty.’” 643 F.3d at


                                           5
1263. “[I]t is likely to be a rare case where the government can directly link one

defendant’s viewing of an image to a particular cost incurred by the victim.” Id. at

1266.

        The district court ordered $5,000 in restitution despite the lack of evidence

directly linking defendant’s actions to a specific $5,000 cost incurred by the

victim, and without making the findings required under Kennedy. Accordingly, the

restitution order is vacated and remanded for proceedings consistent with this

opinion.




        AFFIRMED IN PART, VACATED IN PART, and REMANDED.




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