Argued and Submitted Nov. 5, 2013.
John Rhodes, Assistant Federal Public Defender, Federal Defenders of Montana, Missoula, MT, for Defendant-Appellant.
Lori Anne Harper Suek and Leif Johnson, Assistant United States Attorneys, Office of the United States Attorney, Billings, MT, for Plaintiff-Appellee.
Appeal from the United States District Court for the District of Montana, Charles C. Lovell, Senior District Judge, Presiding.
Before: MILAN D. SMITH, JR. and ANDREW D. HURWITZ, Circuit Judges, and JAMES C. MAHAN, District Judge.[*]
MAHAN, District Judge:
Appellant Roger Allen Roybal (" Roybal" ) pleaded guilty to one count of receiving child pornography in violation of 18 U.S.C. § 2252A(a)(2). Based on its holding that Roybal's act of showing child pornography to an eleven-year-old victim qualified as " distribution," the district court (1) applied a six-level sentencing enhancement under U.S.S.G. § 2G2.2(b)(3)(D), and (2) declined to apply a two-level reduction under U.S.S.G. § 2G2.2(b)(1). On appeal, Roybal contends that his act of " showing" child pornography does not qualify as " distribution" under the sentencing guidelines. Without deciding whether an act of " showing" child pornography to a third party can itself constitute " distribution," we hold that additional findings made by the district court warrant the six-level enhancement.
At sentencing, the district court imposed a supervised-release condition requiring that Roybal participate in a sex-offender treatment program and " abide by the policies of the program, to include physiological testing." The district court made no specific mention of penile plethysmograph testing. Roybal contends on appeal that penile plethysmograph testing may not be imposed as a requirement of his supervised release. As the district court did not make the requisite findings, we hold that penile plethysmograph testing may not be imposed.
I. Factual and Procedural Background
On June 22, 2012, Roger Allen Roybal pleaded guilty to a single count of receiving
child pornography in violation of 18 U.S.C. § 2252A(a)(2). The presentence investigation report (" PSR" ) subsequently prepared by the United States Probation Office stated that Roybal had sexually abused an eleven-year-old child over a four month period prior to his arrest. In the PSR, the probation officer explained that the victim had " disclosed multiple occasions during which Roybal provided her with alcohol and had her watch pornography with him." Based upon these claims, the probation officer's sentencing recommendation included a six-level enhancement under section 2G2.2(b)(3)(D) of the United States Sentencing Guidelines (" U.S.S.G." ) " since the offense involved distribution to a minor that was intended to persuade, induce, entice, or coerce the minor to engage in any illegal activity."
At sentencing, the child victim recounted that she and Roybal watched child pornography together and that Roybal had made sexual contact with her on numerous occasions. Additionally, she testified that Roybal permitted her to " make [her] own book" of pornographic images of both adults and children from his collection. According to the child victim, this " book" was kept in ...