United States of America v. ALBERT SILVA HERNANDEZ, Jr.

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ALBERT SILVA HERNANDEZ, Jr.,
Defendant - Appellant.
No. 13-10428
D.C. No. 2:12-cr-00254-JCM-
PAL-1
MEMORANDUM*
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
FILED
MAY 26 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

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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
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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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